Last Updated: January 1, 2023
This DATA PROCESSING ADDENDUM (“DPA”), as updated from time to time, supplements and its term and conditions are subject to Elegant Marketplace’s (“Company”) Universal Terms of Service (“UToS”), which are incorporated herein by this reference, and governs Company’s use of Customer’s Data (as defined herein) (as a controller of such data). Company and Customer may be individually referred to as a “Party” or collectively, the “Parties.”
- Definitions. Unless otherwise defined in the Agreement (as defined herein), all capitalized terms used in this DPA will have the meanings given to them below:
- “Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
- “Agreement” means the UToS and all other written or electronic agreement(s) between Company and Customer, which govern use of the Website, Products, or Order (as applicable), as such terms or agreement may be updated from time to time. For the avoidance of doubt, all references to the “Agreement” shall also include the Standard Contractual Clauses (where applicable, as defined herein).
- “CCPA” means the California Civil Code Sec. 1798.100 et seq. (also known as the “California Consumer Privacy Act”).
- “Consumer,” “Business,” “Sell,“ and/or “Service Provider” shall have the meanings given to them in the CCPA or CPRA (as applicable).
- “Company Network” means Company’s data center facilities, servers, networking equipment, and software systems that are within Company’s control and are used to serve and/or provide the Websites and Products.
- “Company Security Standards” means the security standards attached to this DPA as Annex 1.
- “CPRA” means the amendments to the CCPA, California Civil Code Sec. 1798.100 et seq. (also known as the California Privacy Rights Act of 2020).
- “Customer” means a Website visitor, user and/or the party set forth in the related Order.
- “Customer Data” means the personal data Company processes on behalf of Customer via the Website or Products, as more particularly described in this DPA.
- “Data Protection Laws” means all applicable worldwide laws, regulations, and legislation relating to data protection and privacy related to processing of Customer Data under the Agreement, including without limitation, where applicable, European Data Protection Laws and Non-European Data Laws, in each case as amended, repealed, consolidated or replaced from time to time.
- “Data Subject” is defined as the person associated with the Personal Data.
- “Europe” means the European Economic Area and its member states (“EEA”), Switzerland and the United Kingdom (“UK”).
- “European Data Protection Laws” means all data protection laws and regulations applicable to Europe, including (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) applicable national implementations of (i) and (ii); (iv) the GDPR as it forms part of UK law by virtue of section 3 of the UK European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018 (together, “UK Data Protection Laws”); and (v) the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (“Swiss DPA”).
- “Non-European Data Protection Laws” means the CCPA, the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”), the Brazilian General Data Protection Law (“LGPD”), Federal Law no. 13,709/2018,the Privacy Act 1988 (Cth) of Australia, as amended (“Australian Privacy Law”), the CCPA, the CPRA, the Virginia Consumer Data Privacy Act (“VDCPA”), the Colorado Privacy Act (“CPA”), the Connecticut Data Protection Act (“CTDPA”), the Utah Consumer Privacy Act (“UCPA”), and all other data protection laws and regulations pertaining to the personal data of its citizens and residents .
- “Personal Data” means any information about, or related to, an identifiable individual, which includes any information that can be linked to an individual or used to directly or indirectly identify an individual, natural person.
- “Processing” means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, recording, securing, organization, storage, adaptation or alteration, access to, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction. “Processes” and “Process” shall be construed accordingly.
- “Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of or access to, Customer Data on systems managed or otherwise controlled by Company.
- “Sensitive Data” means (i) social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof); (ii) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (iii) employment, financial, credit, genetic, biometric or health information; (iv) racial, ethnic, political or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (v) account passwords; or (vi) other information that falls within the definition of “special categories of data” under applicable Data Protection Laws.
- “Standard Contractual Clauses” or “SCCs” means Annex 2, attached to and forming part of this DPA, (i) the currently effective standard contractual clauses between controllers and processors adopted by the European Commission in its Implementing Decision (EU) 2021/91 of 4 June 2021 (the “Controller-to-Processor Clauses”); or (ii) the standard contractual clauses between processors adopted by the European Commission in its Implementing Decision (EU) 2021/91 of 4 June 2021 (the “Processor-to-Processor Clauses”); as applicable in accordance with the applicable term(s) herein.
- “Sub-processor” means any processor engaged by Company or its Affiliates to assist in fulfilling its obligations with respect to serving or providing the Website or Products pursuant to the Agreement or this DPA. Sub-processors may include third parties or Affiliates of Company but shall exclude Company’s employees, contractors, or consultants.
- “UK Addendum” means the International Data Transfer Addendum (version B1.0) issued by the Information Commissioner’s Office under S.119(A) of the UK Data Protection Act 2018, as updated or amended from time to time.
- Unless otherwise defined herein, the terms “personal data,” “controller,” “data subject,” “processor” and “processing” shall have the meaning given to them under applicable Data Protection Laws or if not defined thereunder, the GDPR, and “process,” “processes,” and “processed,” with respect to any Customer Data, shall be interpreted accordingly.
- Data Processing.
- Scope and Roles. If European Data Protection Laws or the LGPD apply to either Party’s processing of Customer Data, the Parties acknowledge and agree that with regard to the processing of Customer Data, this DPA applies when Customer Data is processed by Company. In this context, Company will act as “processor” to Customer who may act either as “controller” or “processor” with respect to Customer Data (as each term is defined in the GDPR).
- Purpose Limitation and Customer Controls. Company shall process Customer Data, as further described in Annex A (Details of Data Processing) of this DPA, only in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing (“Permitted Purposes”). The Website and Products provide Customer with a number of controls, including security features and functionalities, that Customer may use to retrieve, correct, delete or restrict Customer Data. Without prejudice to Section 6.1, Customer may use these controls as technical and organizational measures to assist it in connection with its obligations under the GDPR, CCPA, CPRA, and all other applicable Data Protection Laws, including its obligations relating to responding to requests from Data Subjects.
- Prohibited Data. Customer will not provide (or cause to be provided) any Sensitive Data to Company for processing under the Agreement, and Company will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident or otherwise. For the avoidance of doubt, this DPA will not apply to Sensitive Data.
- Compliance with Laws.
- Customer represents and warrants that
- it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Customer Data and any processing instructions it issues to Company; and
- it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for Company to process Customer Data for the purposes described in the Agreement. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data. Without prejudice to the generality of the foregoing, Customer agrees that it shall be responsible for complying with all laws (including Data Protection Laws) applicable to any other content created, sent, or managed through the Website or Products, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices.
- Company will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA.
- Customer represents and warrants that
- Customer Instructions. The parties agree that the Agreement and this DPA, including the provision of instructions via configuration tools such as any Company management console and APIs made available by Company for the Website and Products, constitute Customer’s documented instructions regarding Company’s processing of Customer Data (“Documented Instructions”). Company will process Customer Data only in accordance with Documented Instructions. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Customer and Company, including agreement on any additional fees payable by Customer to Company for carrying out such instructions. Customer is entitled to terminate this DPA and the Agreement if Company declines to follow instructions requested by Customer that are outside the scope of, or changed from, those given or agreed to be given in this DPA.
- Confidentiality of Customer Data. Company will not access or use, or disclose to any third party, any Customer Data, except, in each case, as necessary to maintain or provide the Website or Products, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a preservation request, warrant, subpoena or court order). To the extent applicable by law, if a governmental body sends a demand for Customer Data, Company will attempt to redirect the governmental body to request that data directly from Customer. As part of this effort, Company may provide Customer’s basic contact information to the government body. If compelled to disclose Customer Data to a government body, then Company will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Company is legally prohibited from doing so. If the SCCs apply, nothing in this Section 4 varies or modifies the SCCs.
- Confidentiality Obligations of Company Personnel. Company restricts its personnel from processing Customer Data without authorization by Company as described in the Company Security Standards. Company imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
- Security of Data Processing.
- Company shall implement and maintain appropriate technical and organizational security measures that are designed to protect Customer Data from Security Incidents and designed to preserve the security and confidentiality of Customer Data in accordance with Company’s security standards described in Annex B (“Security Measures”) of this DPA.
- Company shall ensure that any person who is authorized by Company to process Customer Data (including its employees, agents, and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
- In assessing the appropriate level of security, Company shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data breach.
- Customer is responsible for reviewing the information made available by Company relating to data security and making an independent determination as to whether such meets Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that Company may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Website or Products provided to Customer.
- Upon becoming aware of a Security Incident, Company shall use commercially reasonable efforts to:
- notify Customer without undue delay, and where feasible, within forty-eight (48) hours of awareness;
- provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer; and
- promptly take reasonable steps to contain and investigate any Security Incident. Company’s notification of or response to a Security Incident under this Section shall not be construed as an acknowledgment by Company of any fault or liability with respect to the Security Incident.
- Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Website and Products, including securing Customer Account authentication credentials, protecting the security of Customer Data when in transit to and from the Website or Product, and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Website or Products.
- Security Reports and Audits. Subject to this Section, Company shall make available to Customer on written request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by Customer or an auditor mandated by Customer in relation to the Processing of Customer Data. Information and audit rights of Customer only arise under Section to the extent that the Agreement or this DPA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law. Company shall respond to all reasonable written requests for information made by Customer to confirm Company’s compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, by making additional information available regarding its information security program upon Customer’s written request to [email protected], provided that Customer shall not exercise this right more than once per calendar year.
- Authorized Subprocessors. Customer acknowledges, understands and agrees that Company may use sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing tracking or support services. The Subprocessors list currently engaged by Company to carry out processing activities on Customer Data on behalf of Customer, as amended by Company. Company shall notify Customer if it adds or removes Subprocessors prior to any such changes. Company may update the Subprocessor list and may provide Customer with a mechanism to obtain notice of that update. Customer consents to Company’s use of Subprocessors as described in this Section. Except as set forth in this Section, or as Customer may otherwise authorize, Company will not permit any Subprocessor to carry out processing activities on Customer Data on behalf of Customer.
- Subprocessor Obligations. Company shall:
- enter into a written agreement with each Subprocessor containing data protection obligations that provide at least the same level of protection for Customer Data as those in this DPA, to the extent applicable to the nature of the service provided by such Subprocessor; and
- remain responsible for such Subprocessor’s compliance with the obligations of this DPA and for any acts or omissions of such Subprocessor that cause Company to breach any of its obligations under this DPA. Customer acknowledges and agrees that, where applicable, Company fulfills its obligations under Clause 9 of the Controller-to-Processor Clauses and Processor-to-Processor Clauses (as applicable) by complying with this Section and that Company may be prevented from disclosing Subprocessor agreements to Customer due to confidentiality restrictions but Company shall, upon request, use reasonable efforts to provide Customer with all relevant information it reasonably can in connection with Subprocessor agreements.
- Data Subject Rights.
- Data Subject Requests. Taking into account the nature of the Processing, processors may assist the Company by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws. In the event that any such request is made to Company directly, Company shall not respond to such communication directly except as appropriate (for example, to direct the Data Subject to contact Customer) or legally required, without Customer’s prior authorization. If Company is required to respond to such a request, Company shall, where Customer is identified or identifiable from the request, promptly notify Customer and provide Customer with a copy of the request unless Company is legally prohibited from doing so. For the avoidance of doubt, nothing in the Agreement (including this DPA) shall restrict or prevent Company from responding to any Data Subject or data protection authority requests in relation to personal data for which Company is a controller.
- Data Protection Impact Assessment. To the extent required under applicable Data Protection Laws, Company shall (considering the nature of the processing and the information available to Company) provide all reasonably requested information regarding the Website or Products to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws. Company shall comply with the foregoing by:
- complying with Section 7 (Security Reports and Audits);
- providing the information contained in the Agreement, including this DPA; and
- if the foregoing sub-sections 9.2.1 and 9.2.3 are insufficient for Customer to comply with such obligations, upon request, providing additional reasonable assistance (at Customer’s sole expense).
- Security Breach Notification.
- Company shall notify Customer without undue delay upon Company becoming aware of a Personal Data breach affecting Customer’s Personal Data, providing Customer with sufficient information to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data breach under the Data Protection Laws.
- Company shall cooperate with Customer and take reasonable commercial steps as directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data breach.
- Transfers of Personal Data.
- Data Center Locations. Subject to Section 11.2, Customer acknowledges that Company may transfer and process Customer Data to and in the United States and anywhere else in the world where Company, its Affiliates or its Sub-processors maintain data processing operations. Company shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws and this DPA.
- Australian Data. To the extent that Company is a recipient of Customer Data protected by the Australian Privacy Law, the Parties acknowledge and agree that Company may transfer such Customer Data outside of Australia as permitted by the terms agreed upon by the Parties and subject to Company complying with this DPA and the Australian Privacy Law.
- EEA Data Transfers. To the extent that Company is a recipient of Customer Data protected by GDPR in a country outside of EEA that is not recognized as providing an adequate level of protection for personal data (as described in applicable European Data Protection Laws), the Parties agree to abide by and process such Customer Data in compliance with the SCCs, which shall be incorporated into and form an integral part of this DPA.
- UK Data Transfers. With respect to transfers to which the UK Data Protection Laws apply, the SCCs shall apply and shall be deemed amended as specified by the UK Addendum. The UK Addendum shall be deemed executed by the parties and incorporated into and form an integral part of this DPA. In addition: Tables 1 to 3 in Part 1 of the UK Addendum shall be deemed completed with the information set out in Annexes I and II of the relevant SCCs; and Table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting “neither party.”
- Swiss Data Transfers. With respect to transfers to which the Swiss DPA apply, the SCCs shall apply in accordance with Section 11.3 with the following modifications:
- references to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss DPA;
- references to specific Articles of “Regulation (EU) 2016/679” shall be replaced with the equivalent article or section of the Swiss DPA;
- references to “EU,” “Union” and “Member State law” shall be replaced with “Switzerland”;
- Clause 13(a) and Part C of Annex Il shall be deleted; (v) references to the “competent supervisory authority” and “competent courts” shall be replaced with “the Swiss Federal Data Protection and Information Commissioner” and “relevant courts in Switzerland”;
- Clause 17 shall be replaced to state “The Clauses are governed by the laws of Switzerland”; and
- Clause 18 shall be replaced to state “Any dispute arising from these Clauses shall be resolved by the applicable courts of Switzerland. The parties agree to submit themselves to the jurisdiction of such courts.”
- Compliance with the SCCs. The Parties agree that if Company cannot ensure compliance with the SCCs, it shall promptly inform Customer of its inability to comply. If Customer intends to suspend the transfer of European Data and/or terminate the affected parts of the Website or Products, it shall first provide notice to Company and provide Company with a reasonable period of time to cure such non-compliance, during which time Company and Customer shall reasonably cooperate to agree what additional safeguards or measures, if any, may be reasonably required. Customer shall only be entitled to suspend the transfer of data and/or terminate the affected parts of the Website or Products for non-compliance with the SCCs if Company has not or cannot cure the non-compliance within a reasonable period.
- Alternative Transfer Mechanism. To the extent Company adopts an alternative lawful data transfer mechanism for the transfer of European Data not described in this DPA (“Alternative Transfer Mechanism”), the Alternative Transfer Mechanism shall apply instead of the transfer mechanisms described in this DPA (but only to the extent such Alternative Transfer Mechanism complies with applicable European Data Protection Laws and extends to the countries to which European Data is transferred). In addition, if and to the extent that a court of competent jurisdiction or supervisory authority orders (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer European Data (within the meaning of applicable European Data Protection Laws), Company may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of European Data.
- Return or Deletion of Data Deletion or Return on Termination. Upon termination or expiration of the Agreement, Company shall (at Customer’s election) delete or return to Customer all Customer Data (including copies) in its possession or control, except that this requirement shall not apply to the extent Company is required by applicable law to retain some or all of Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data Company shall securely isolate, protect from any further processing and eventually delete in accordance with Company’s deletion or retention policies, except to the extent required by applicable law. The Parties agree that the certification of deletion of Customer Data described in Clause 8.5 and 16(d) of the Controller-to-Processor Clauses and Processor-to-Processor Clauses (as applicable) shall be provided by Company to Customer only upon Customer’s written request.
- Jurisdiction-Specific Terms. To the extent Company processes Customer Data originating from and protected by Data Protection Laws in one of the jurisdictions listed in Annex C, then the terms specified in Annex C with respect to the applicable jurisdiction(s) (“Jurisdiction-Specific Terms”) apply in addition to the terms of this DPA. In the event of any conflict or ambiguity between the Jurisdiction-Specific Terms and any other terms of this DPA, the applicable Jurisdiction-Specific Terms will take precedence, but only to the extent of the Jurisdiction-Specific Terms’ applicability to Company.
- Termination of the DPA. This DPA shall remain in effect for as long as Company carries out Customer Data processing operations on behalf of Customer or until termination of the Agreement.
- Limitation of Liability
- Each Party’s and all of its Affiliates’ liability taken together in the aggregate arising out of or related to this DPA (including the SCCs) shall be subject to the exclusions and limitations of liability set forth in the Agreement.
- Any claims made against Company or its Affiliates under or in connection with this DPA (including, where applicable, the SCCs) shall be brought solely by Customer.
- In no event shall any Party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise.
- Duties to Inform. Where Customer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by Company, Company will inform Customer without undue delay. Company will, without undue delay, notify all relevant parties in such action (e.g., creditors, bankruptcy trustee) that any Customer Data subjected to those proceedings is Customer’s property and area of responsibility and that Customer Data is at Customer’s sole disposition.
- Entire Agreement; Conflict. The Parties agree that this DPA shall replace any existing data processing agreement or similar document that the Parties may have previously entered into in connection with the Website or Products. In the event of any conflict or inconsistency between this DPA and the UToS, the provisions of the following documents (in order of precedence) shall prevail: SCCs; then this DPA; and then the UToS.
- Modification. Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.
- Successors and Assignees. No one other than a Party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
- Governing Law and Jurisdiction. This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
- Effective Date. This DPA is entered into with effect from the earlier date of use of the Website or Products or the signature on the applicable Order.
ANNEX 1 TO
DATA PROCESSING ADDENDUM
Company Security Standards
Capitalized terms not otherwise defined in this document have the meanings assigned to them in the Agreement or DPA.
- Information Security Program. Company will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Company secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the Company Network, and (c) minimize security risks, including through risk assessment and regular testing. Company will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures: The Company Network will be electronically accessible to employees, contractors and any other person as necessary to provide the Website and Products. Company will maintain access controls and policies to manage what access is allowed to the Company Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. Company will maintain corrective action and incident response plans to respond to potential security threats.
- Continued Evaluation. Company will conduct periodic reviews of the security of Company’s Network and adequacy of Data Processor’s information security program as measured against industry security standards and its policies and procedures. Company will continually evaluate the security of Company’s Network to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
ANNEX 2 TO
DATA PROCESSING ADDENDUM
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
Purpose and scope
- The purpose of these standard contractual clauses is to ensure compliance with the requirements 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 (General Data Protection Regulation) for the transfer of personal data to a third country.
- The Parties:
- the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Appendix 1 (hereinafter each “data exporter”), and
- the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Appendix 1. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter “Clauses”).
- These Clauses apply with respect to the transfer of personal data as specified in Appendix 1.
- The Appendix to these Clauses containing the Appendixes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
- These Clauses set out appropriate safeguards, including enforceable Data Subject Rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8.1(b), 8.9(a), (c), (d) and (e);;
- Clause 9(a), (c), (d) and (e);
- Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18(a) and (b).
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Appendix 1.
Clause 7 – Optional
- An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Appendix 1.
- Once it has completed the Appendix and signed Appendix 1, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Appendix 1.
- The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
- The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
- The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Appendix 1, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Appendix 2 and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Appendix 1. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
- The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “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 purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Appendix 2. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
- The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all 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 data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer 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 (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Appendix 1.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
- the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
- The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
- The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
- The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for 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 audit, the data exporter may take into account relevant certifications held by the data importer.
- The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
- The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
- The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least thirty (30) days prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation.
- Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
- The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
- The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
- The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
- The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Appendix 2 the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
- The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
- In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
- Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
- lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
- refer the dispute to the competent courts within the meaning of Clause 18.
- The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
- The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
- The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
- Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
- The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
- Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
- The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
- Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
- The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Appendix 1, shall act as competent supervisory authority.
- The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
- The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
- the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
- any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
- The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
- The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
- The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
- Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
- The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
- receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
- becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
- If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
- Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
- The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
- Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
- The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
- The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
- The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
- the data importer is in substantial or persistent breach of these Clauses; or
- the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
- Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
- Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of Ireland.
- A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
- The Parties agree to submit themselves to the jurisdiction of such courts.
APPENDIX 1 TO
THE STANDARD CONTRACTUAL CLAUSES
Data exporter: The data exporter is the entity identified as Customer in the DPA.
Data importer: The data importer is Company, a provider of web services.
Data subjects: Data Subject is defined in Section 1.11 of the DPA.
Categories of data: Personal Data is defined in Section 1.15 of the DPA.
Processing operations: The Personal Data transferred will be subject to the following basic processing activities: Processing as defined in Section 1.16 of the DPA.
APPENDIX 2 TO
THE STANDARD CONTRACTUAL CLAUSES
The Security Measures implemented by the data importer are as described in Annex 1 to the DPA (Company Security Standards).
ANNEX A TO
DATA PROCESSING ADDENDUM
Details of Data Processing
- Categories of Data Subjects: The categories of Data Subjects whose Personal Data is Processed include (a) a user or visitor to the Website; (b) Customer (i.e., an individual with access to a Customer Account); and (c) a Customer user, visitor, customer, subscribe, end-user and other individual about whom Customer has given Company information or has otherwise interacted with Customer via the Website or Products (collectively, a “Customer End-User”).
- Categories of Personal Data: Customer or Customer End-Users may upload, submit, or otherwise provide certain Personal Data via the Website or Products, the extent of which is typically determined and controlled by Customer in its sole discretion, and may include the following types of Personal data:
- Identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility).
- Identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address); personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information).
- Sensitive Data Processed (if applicable): Company does not want to, nor does it intentionally, collect or process any Sensitive Data in connection with the Website or Products.
- Frequency of Processing: Continuous and as determined by Customer.
- Subject Matter and Nature of the Processing: Company provides hosted private cloud services, as more particularly described on the Agreement, Website, Products or Order. The subject matter of the data processing under this DPA is the Customer Data. Customer Data will be processed in accordance with the Agreement (including this DPA) and may be subject to the following processing activities: Storage and other processing necessary to provide, maintain and improve the Website and Products provided to Customer pursuant to the Agreement.
- Purpose of the Processing: Company shall only process Customer Data for the Permitted Purposes, which shall include: (a) processing as necessary to provide the Website and Products in accordance with the Agreement; (b) processing initiated by Customer in its use of the Website and Products; and (c) processing to comply with any other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement.
- Duration of Processing and Period for which Personal Data will be Retained: Company will process Customer Data as outlined in Section 12 (Return or Deletion of Data) of this DPA.
ANNEX B TO
DATA PROCESSING ADDENDUM
The Security Measures implemented by the data importer are as described in Annex 1 to the DPA (Company Security Standards).
ANNEX B TO
DATA PROCESSING ADDENDUM
Jurisdiction- Specific Terms
- Objection to Sub-processors. Customer may object in writing to the appointment of a new Sub-processor within five (5) calendar days of receiving notice in accordance with Section 8.1 of the DPA, provided that such objection is based on reasonable grounds relating to data protection. In such event, the Parties shall discuss such concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, Company will, at its sole discretion, either not appoint such Sub-processor, or permit Customer to suspend or terminate the affected Product in accordance with the termination provisions in the Agreement without liability to either Party (but without prejudice to any fees incurred by Customer prior to suspension or termination).
- Government Data Access Requests. As a matter of general practice, Company does not voluntarily provide government agencies or authorities (including law enforcement) with access to or information about Company accounts (including Customer Data). If Company receives a compulsory request (whether through a preservation request, subpoena, court order, search warrant, or other valid legal process) from any government agency or authority (including law enforcement) for access to or information about a Company account (including Customer Data) belonging to a Customer whose primary contact information indicates the Customer is located in Europe, Company shall: (a) review the legality of the request; (b) inform the government agency that Company is a processor of the data; (c) attempt to redirect the agency to request the data directly from Customer; (d) subject to the applicable law related to the request, notify Customer via email sent to Customer’s primary contact email address of the request to allow Customer to seek a protective order or other appropriate remedy; and (e) provide the minimum amount of information permissible when responding to the agency or authority based on a reasonable interpretation of the request. As part of this effort, Company may provide Customer’s primary and billing contact information to the agency. Company shall not be required to comply with this paragraph if it is legally prohibited from doing so, or it has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual, public safety, or Company’s property, the Website, or Products, but where Company is legally prohibited from notifying Customer of requests it shall use commercially reasonable efforts to obtain a waiver of the prohibition.
- Except as described otherwise, the definitions of: “controller” includes “Business”; “processor” includes “Service Provider”; “data subject” includes “Consumer”; “personal data” includes “Personal Information”; in each case as defined under the CCPA.
- For this “California” section of Annex C only, “Permitted Purposes” shall include processing Customer Data only for the purposes described in this DPA and in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, as otherwise agreed in writing, including, without limitation, in the Agreement, or as otherwise may be permitted for “service providers” under the CCPA.
- Company’s obligations regarding Data Subject requests, as described in Section 9 (Data Subject Rights) of this DPA, extend to rights requests under the CCPA.
- Notwithstanding any use restriction contained elsewhere in this DPA, Company shall process Customer Data to serve or deliver the Website or Products, for the Permitted Purposes and/or in accordance with Customer’s documented lawful instructions, or as otherwise permitted or required by applicable law.
- Notwithstanding any use restriction contained elsewhere in this Annex C, Company may de-identify or aggregate Customer Data as part of serving or delivering the Website or Products specified in this DPA and the Agreement.
- Where Sub-processors process the Personal Information of Customer contacts, Company takes steps to ensure that such Sub-processors are Service Providers under the CCPA with whom Company has entered into a written contract that includes terms substantially similar to this “California” section of Annex C or are otherwise exempt from the CPA’s definition of “sale.” Company conducts appropriate due diligence on its Sub-processors.
- Company takes steps to ensure that Company’s Sub-processors, as described in Section 8 (Sub-processing) of the DPA, are third parties under PIPEDA, with whom Company has entered into a written contract that includes terms substantially similar to this DPA. Company conducts appropriate due diligence on its Sub-processors.
- Company will implement technical and organizational measures as set forth in Section 6 (Security) of the DPA.