The Customer Personal Data Processed by Data Processor includes and shall be limited to the following categories of data: (i) identification and contact information (such as name, email address); (ii) purchase information (such as payment method, products purchased, billing information); and (iii) information gathered in the provision of services to Data Controller (such as analytics, device and browser information).
The Customer Personal Data Processed by Data Processor does not contain special categories of Personal Data.
The Agreement is being put in place to ensure that Data Processor processes Data Controller’s personal data on Data Controller’s instructions and in compliance with applicable data privacy laws.
The Parties to this Agreement hereby agree to be bound by the terms and conditions in the attached Schedule as applicable with effect from 25 May 2018 (the “Effective Date”).
For the purposes of this Agreement, the following expressions bear the following meanings unless the context otherwise requires:
“Applicable Data Protection Laws” means the General Data Protection Regulation 2016/679 (“GDPR”) once it takes effect and any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument of the Data Controller’s Member State which implements the GDPR, the Data Protection Directive 95/46/EC and the e-Privacy Directive 2002/58/EC (in each case as amended, consolidated, re-enacted or replaced from time to time);
“Data Subject” means the living individuals who are the subject of the Customer Personal Data;
“Model Clauses” means the standard contractual clauses for the transfer of Personal Data to data processors established in Third Countries set out in the Commission Decision of 5 February 2010 (C(2010) 593), as amended by EU Commission Implementing Decision 2016/2297 of 16 December 2016;
“Personal Data”and “Process”, “Processed” or “Processing” have the meaning given in the GDPR;
“Regulator” means the data protection supervisory authority which has jurisdiction over Data Controller’s Processing of Personal Data; and
“Third Countries” means all countries outside of the scope of the data protection laws of the European Economic Area (“EEA”), excluding countries approved as providing adequate protection for Personal Data by the European Commission from time to time.
Conditions of Processing
Data Processor’s Obligations
Data Processor shall only Process Customer Personal Data on behalf of Data Controller and in accordance with, and for the purposes of providing the Services. If Data Processor cannot provide such compliance for whatever reason (including if the instruction violates Applicable Data Protection Laws), it agrees to inform Data Controller of its inability to comply as soon as reasonably practicable.
Data Processor shall ensure that its personnel who are authorized to Process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Data Processor shall implement and hold in force for the term of this Agreement specific technical and organizational security measures as required by the GDPR.
Data Processor shall notify Data Controller promptly upon receipt by Data Processor of a request from an individual seeking to exercise any of their rights under Applicable Data Protection Laws. Taking into account the nature of the processing, Data Processor shall, at Data Controller’s expense, assist Data Controller by appropriate technical and organizational measures, for the fulfillment of Data Controller’s obligation to respond to requests by Data Subjects to exercise their rights under Chapter III of the GDPR (including the right to transparency and information, the data subject access right, the right to rectification and erasure, the right to the restriction of processing, the right to data portability and the right to object to processing). Data Processor shall carry out a request from Data Controller to amend, correct, block, transfer or delete any of the Customer Personal Data to the extent necessary to allow Data Controller to comply with its responsibilities as a data controller.
Upon termination of the Processing of Personal Data by Data Processor (subject to Data Processor’s customer data retention policy) and at Data Controller’s request, Data Processor shall either (i) delete all Customer Personal Data; or (ii) return all Customer Personal Data to the Data Controller and delete existing copies unless applicable law requires storage of the Customer Personal Data.
Data Processor shall upon written request from Data Controller from time to time provide Data Controller with all information necessary to demonstrate compliance with the obligations laid down in this Agreement.
Data Controller acknowledges and agrees that Data Processor may, or may appoint an affiliate or third party subcontractor to, Process the Data Controller’s Personal Data in a Third Country, provided that it ensures that such Processing takes place in accordance with the requirements of Applicable Data Protection Laws. Data Controller hereby consents to Data Processor’s access to Customer Personal Data from the United States to the extent necessary for Data Processor to provide the Services.
Where the Data Processor processes, accesses, and/or stores Customer Personal Data in any Third Country, Data Processor shall comply with the data importer’s obligations set out in the Model Clauses, which are hereby incorporated into and form part of this Agreement. The processing details set out at paragraphs a) to d) of the first page of this Agreement shall apply for the purposes of Appendix 1 of the Model Clauses and the terms of the Security Policy apply for the purposes of Appendix 2 of the Model Clauses. Data Controller hereby grants Data Processor a mandate to execute the Model Clauses, for and on behalf of Data Controller, with any relevant subcontractor (including affiliates) it appoints.
Data Controller acknowledges and agrees that Data Processor relies solely on Data Controller for direction as to the extent to which Data Processor is entitled to access, use and process Customer Personal Data. Consequently, Data Processor is not liable for any claim brought by Data Controller or a data subject arising from any action or omission by Data Processor to the extent that such action or omission resulted from Data Controller’s instructions.
Data Controller’s Obligations
Data Controller agrees that it will indemnify and hold harmless Data Processor on demand from and against all claims, liabilities, costs, expenses, loss or damage (including consequential losses, loss of profit and loss of reputation and all interest, penalties and legal and other professional costs and expenses) incurred by Data Processor arising directly or indirectly from a breach of this Clause 4 or any Applicable Data Protection Laws.
Data Controller hereby consents to the use by Data Processor of the Subcontractors set out in the list of third party sub processors available upon request. If Data Processor appoints a new Subcontractor to Process Customer Personal Data, it shall update such list. In the event that Data Controller objects to the appointment, Data Controller’s sole remedy shall be to terminate the services provided by Data Processor. If Data Controller does not object, Data Processor may proceed with the appointment. Data Processor ensures that it has a written agreement in place with all Subcontractors which contains obligations on the Subcontractor which are no less onerous on the relevant Subcontractor than the obligations on Data Processor under this Agreement.
Law and Jurisdiction
Last updated: June 18, 2018