Last updated: 24.05.2018
- Demand Partner Terms
- Data Processing Terms
“Ad” shall mean any creative including, but not limited to, text link, banner, voucher code, video, rich media and data feed, or any combination thereof.
“Ad Media” shall mean any person or legal entity that is connected to the Platform and supplies traffic to the Offers available on the Platform.
“Client” shall mean any third-party, including, but not limited to, persons and legal entities, on whose behalf You manage the Offers.
“Interface” shall mean the online element that enables You to use the Platform.
“Offer” shall mean the program set up by You to which the Ad Medias can promote and direct the Users who purchase the Products. In return for promoting the Offers the Ad Medias are entitled to payouts in accordance with the terms of the Agreement and Offer.
“Platform” shall mean Our proprietary suite of technology including, but not limited to, technology and services to create accounts, offers and campaigns, trade with Ad Medias, track and process events, monitor and analyze results, manage extensions as well as billing and payments.
“Product” shall mean any product or service that is advertised in an Offer.
“Site” shall mean the website linked to in the Ad promoting the Product.
“User” shall mean any user of the internet.
“Website” shall mean the Our website.
2. Use of the Platform
3. Scope of the Agreement
You desire to use the Platform to advertise Products to Users through Offers in accordance with the Agreement.
4. Changes to the Agreement
If We inform You about changes to the Agreement, You will be deemed to agree to the changes if You continue to use the Platform. If We make changes to the Agreement that You do not agree with, You must advise Us of this in writing within 7 days. You will then be entitled to use the Platform for a period of 21 days after the date that You advise Us of this, after which you lose access to the Platform and cannot use it any longer unless in Our sole discretion We decide otherwise.
5.1 Subject to the terms of the Agreement We, in consideration for the applicable fees, hereby grant You a limited, non-transferable, non-exclusive, non-sub licensable and revocable license to access, view and use the Platform and any related information provided to You by Us (the “License”).
5.2 The License does not include or authorize: (a) any reproduction, duplication, copying, sale, trading, resale, modification or any other commercial use of any portion of the Platform or any information contained therein; (b) downloading (other than the page caching) of any portion of the Platform or any information contained therein, except as expressly permitted on the Platform; (c) decompiling or reverse engineering any part of the Platform; (d) using any meta-tags or any other «hidden text» utilizing Our trademarks without prior written consent; or (e) any use of the Platform or any information contained therein other than for their intended purpose. Any unauthorized use of the License is strictly prohibited and results in an immediate termination of the Agreement.
5.3 Your data may be included in anonymous data sets to analyze trends, calculate price and performance indexes and provide industry and performance insights.
5.4 You acknowledge and agree that We may improve the form, nature, and content of the Platform and any information contained therein from time to time at Our sole discretion without prior notice to You.
5.5 You agree that You will not, in connection with Your use of the Platform, violate any applicable law, ordinance, rule, regulation or treaty.
6.1 In order to submit the Application and join the Platform You must be a corporate entity or an individual of at least eighteen (18) years of age.
6.2 We will review the Application and promptly notify You of its acceptance or rejection. If any of the information supplied as part of the Application changes, you must immediately update the information in Your Interface. If You submit the Application on behalf of Your employer or another entity, You represent and warrant that You have full legal authority to bind Your employer or such other entity to the Agreement. If You do not have such authority, then You may not submit the Application or use the Platform on behalf of Your employer or another entity and You must discontinue all use of the Platform immediately.
6.3 You accept the terms of the Agreement by completing the Application and clicking “Sign up” or by e-signing and/or signing the Agreement directly and/or as part of another document. We may reject the Application at Our sole discretion without giving any reason for Our decision.
6.4 The Agreement will commence and shall become binding on the Parties on the date on which it has been executed by both Parties (the “Effective Date”).
7.1 We shall deliver the Ads on Your behalf to the Users in accordance with the criteria established in the Offers. Each Offer shall specify the information necessary for Us to deliver the Ads.
7.2 You agree that You are solely responsible for any Offer that is published, transmitted and/or posted by and through the Platform. In connection with the Offers that You publish, transmit and/or post by and through the Platform, You agree not to: (a) post, offer for download, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (b) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spam-ware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the internet; (c) post Offers that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable and/or (d) post Offers that do not fully comply with all applicable local, state and federal laws, rules and regulations.
7.3 Engaging in any of the prohibited actions as described in the preceding paragraph shall be deemed a breach of the Agreement and may result in the immediate Termination of the Agreement without notice, in the Our sole discretion. We reserve the right to pursue any and all legal remedies against Demand Partners that engage in the aforementioned prohibited conduct.
7.4 You acknowledge that We have the right to pre-screen any Offers, but no obligation to do so. At Our sole discretion, any Offer may be included in the Platform in whole or in part and We may request Offer modifications at any time. Without limiting the foregoing, We may pause or terminate any Offer at any time for cause.
7.5 You acknowledge that the Offers are Your sole responsibility. We have no responsibility to monitor or otherwise police: (a) Your Offers posted on the Platform; (b) the Sites the Ads redirect to; (c) any Ad Medias promoting Your Offers; and/or (d) any of the Products offered on the Sites. You agree that under no circumstances, will We be liable in any way for the Offers including, but not limited to, any errors or omissions in any Offers or any loss or damage of any kind accrued as a result of the use or distribution of any Offers transmitted or otherwise made available via the Platform.
7.6 Individuals or entities who purchase Products advertised through Offers on the Platform or who perform any other transaction on the Sites shall not be deemed to be Our customers, clients or business associates. The same accounts for any Demand Partner Client using the Platform with the Your permission. We have no liability or responsibility to review, endorse, police or enforce any such relationship(s) between You, the Demand Partner Clients and/or the Users. We shall have no obligation to resolve any dispute between You, the Demand Partner Clients and/or the Users. You expressly agree to indemnify and hold harmless Us, Our parent company, Our affiliates and Our subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, from and against any and all losses and expenses (including reasonable attorney fees, court costs and/or settlement costs) arising from any dispute between You, the Demand Partner Clients and/or the Users.
8. Invoicing and Payment
8.1 You shall pay Us the fees set forth in the Agreement commencing from the Start Date.
8.2 Your billing currency is Norwegian Kroner (NOK) unless otherwise agreed upon in writing.
8.3 The payment term is fifteen (15) days.
8.4 You are responsible for any and all fees associated with invoice payments and for any and all costs resulting from currency exchange.
8.5 You are solely responsible for paying any and all applicable sales, use, and/or withholding tax (if any) due to all applicable taxing authorities arising from, or in connection with, Your use of the Platform including, without limitation, taxes and related fees, costs and penalties incurred by You and/or Your Demand Partner Clients pursuant to those tax laws of any applicable state in which, pursuant to the terms of the Agreement, We shall be considered a software vendor for tax purposes.
8.6 You are responsible for all fees accrued on and before the effective date of termination, even if such fees do not become due and payable until after the effective date of termination. We reserve the right to send Your account to debt collection for non-payment and to use Your information for debt collection purposes.
8.7 Non-payment is considered a material breach of the Agreement. In case of non-payment We have the right to terminate the Agreement and/or deactivate Your account and/or deny you access to the Platform with immediate effect. If You fail to make any scheduled payment for accrued fees, such overdue months are subject to interest charges in the amount of one and a half percent (1.5%) per month, compounded monthly, or, if different, the maximum amount permitted by law.
8.8 To use our Platform, We may require You to provide Us with accurate, complete, and current information for a valid credit card that You are authorized to use. Amounts owed will be charged to Your credit card unless You request, and Target Circle approves, an alternative payment method. If Your invoice falls below payment thresholds determined at Our sole discretion, We may wait with charging Your credit card until the aggregated amounts owed exceed the payment threshold. All credit card holders are subject to validation checks and authorization by the card issuer, and We are not obliged to inform You of the reason for any refusal. We are not responsible if Your card issuer or bank charges You as a result of Our processing of Your credit card payment in accordance with Your instructions.
8.9 Our data and records shall be determinative for purposes of calculating the fees due hereunder.
8.10 Performission shall be responsible for processing the Ad Media payouts based on the recorded and approved transactions subject to the receipt of the corresponding invoice payment. Your transaction approval is irreversible and You shall not be able to claim back any payments made pursuant to Your approval.
9. Your Rights and Obligations
9.1 You shall be responsible for the Ads and legal aspects of the Products offered on the Sites.
9.2 You agree to enter and maintain accurate and current information in Your Interface.
9.3 You are entitled to decline pending commissions under the following circumstances: (a) duplicate sale, lead or install; (b) User uses incomplete or false information to register; (c) User does not match the profile defined in the Offer; (d) Ad Media violates the Offer policies; (e) any fraudulent action that intentionally attempts to create sales, leads, installs or click-throughs using, without limitation, robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of creating commissions; (f) other circumstances specified in the Offer.
9.4 We are entitled to request proof for every declined commission and You are obliged to provide Us with the proof within 48 hours after You have received Our request. If the proof is not provided in time or disputable, We may reverse Your decision to decline commissions in parts or in full at Our sole discretion.
9.5 You shall continuously monitor Your Interface and validate any and all pending transactions via Your Interface as soon as possible, but, in any event, within 90 days of the first recording of the applicable transaction in Your Interface (the “Validation Period”). All transactions that are not validated during the Validation Period shall automatically be deemed approved by You.
11. Our Rights and Obligations
10.1 We shall provide You with the Platform as follows: (i) provision of the technology through which Products by means of Offers can be advertised to Users, and (ii) provision of the tracking and reporting solution to You and Ad Medias.
10.2 During the term of the Agreement, We may (i) host, make available and serve Ads; (ii) make minor stylistic changes to Ads to ensure a consistent user experience on the Platform; and (iii) integrate and display links to the Sites.
11. Intellectual Property Rights
11.1 Unless otherwise indicated, the Platform and all related content, including, without limitation, the Website, press releases, presentations, videos, tutorials, case studies, whitepapers, infographics, support articles, help texts and trademarks (the “IP”), and the selection and arrangement thereof, are Our proprietary property or are licensed to Us and are protected by the laws of Norway and international intellectual property laws. Any use, copying, redistribution and/or publication of any part of the IP, and the selection and arrangement thereof, other than as authorized by the Agreement or expressly authorized in writing by Us, is strictly prohibited. In addition, the look and feel of the Website and Platform, including all page headers, custom graphics, button icons and scripts, is part of the IP and may not be copied, imitated or used, in whole or in part, without Our prior written permission. You do not acquire any ownership rights to the Platform or IP, and We reserve all rights not expressly granted in the Agreement.
11.2 You shall provide Us the Ads. Subject to the terms of the Agreement and for the sole purpose of the Agreement, You hereby grant Us a non-exclusive, non-transferable, royalty-free and worldwide license during the term of the Agreement to: (a) incorporate the Ads, trademarks, trade names or other designations of source in the Offers and (b) display on, and distribute through, the Website, the Platform and in related marketing material produced and distributed by Us, the Offers and any other information posted on the Platform or otherwise made available by You.
11.3 Nothing in the Agreement will be deemed to grant or assign to Us any intellectual property rights, ownership rights, license rights, or interests of any kind in Your trademarks, trade secrets, patents, copyrights, products, services, technology or other proprietary content of Yours which at all times remain Your sole and exclusive property.
12.1 “Confidential Information” means information which by its nature is confidential, is designated by the disclosing Party as confidential, which the receiving Party knows or ought to know is confidential and which is disclosed by or on behalf of the disclosing Party to the receiving Party, or otherwise is in the possession of the receiving Party, in connection with the Agreement and whether disclosed before, on or after the Effective Date including information which is disclosed orally, in writing, or by any other means including but not limited to printed, other graphic or documentary form, contained in software, on computer disks or tapes (whether machine or user readable), visually by way of model or demonstration and, in each case, any copy thereof.
12.2 Notwithstanding 12.1 above, Confidential Information shall not include information which:
- entered or subsequently enters the public domain without breach of the Agreement or any other obligation of confidentiality by the receiving Party;
- the receiving Party can demonstrate was already in its possession or known to it by being in its use or being recorded in its files or computers or other recording media prior to receipt from the disclosing Party and was not previously acquired from or on behalf of the disclosing Party under any obligation of confidentiality;
- is disclosed to the receiving Party by a third party without breach by the receiving Party or such third party of any obligation of confidentiality owed to the disclosing Party;
- the receiving Party can demonstrate is independently developed or discovered by or for it not as a result of any activities relating to the Agreement;
- is hereafter disclosed by the disclosing Party to a third party without restriction on disclosure or use, including, without limitation, by way of the registration of a patent specification; and
- is disclosed by the receiving Party with the prior written permission of the disclosing Party.
12.3 Each Party shall not use the other Party’s Confidential Information, except as necessary for the performance of the Agreement, and will not disclose such Confidential Information to any third Party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of the Agreement. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information, if pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to enable it to contest such order or requirement.
Except as expressly set forth herein, to the fullest extent of all applicable laws, the Website (including all information thereon) and Platform are provided by Us as a neutral host and on an “as is” basis, and we disclaim: (a) all representations and warranties, expressed or implied, regarding the Website and Platform, or otherwise relating to the Agreement, including any implied warranties of merchantability, fitness for a particular purpose or arising from course of dealing or course of performance; (b) any warranty that the Website and Platform or any information therein will operate uninterrupted, error-free, or that the servers are free of viruses, spyware, malware or other harmful components; and (c) liability for any third party’s security methods and protection procedures. Further, we make no representation or warranty with respect to any results obtainable through the Platform and/or associated products. You must use industry-recognized software to detect and disinfect viruses from any download. No advice or information, whether verbal or written, we give through the Website, Platform and/or otherwise shall create any warranty, representation and/or guarantee not expressly stated herein. During and after the validity of the Agreement any claim that is not made within the statutory limitation period shall be forfeited.
14. Limitation of Liability
14.1 Nothing in the Agreement excludes or limits either Party’s liability for (i) fraud or fraudulent misrepresentation; (ii) voluntary or gross negligent acts or omissions; (iii) loss of life or personal injury; or (iv) anything which cannot be excluded or limited by law.
14.2 Neither party shall have any liability (whether in contract, tort or otherwise) under or in connection with the Agreement for any special or indirect damages, including, without limitation, consequential damages, loss of profits, loss of savings and damages resulting from interruption of business regardless whether foreseeable, known or otherwise.
14.4 Each Party’s aggregate liability (whether in contract, tort or otherwise) under or in connection with the Agreement shall not exceed the net amount payable by You to Us in any rolling 6 month period ending the date on which such liability arises.
15.1 The indemnifying Party, at its own expense, shall defend, indemnify and hold harmless the indemnified Party against any losses, damages, liabilities, penalties, costs and expenses, including without limitation reasonable attorneys’ fees, and pay any settlement amounts or awarded damages arising out of any third party claim, suit or action to the extent that such claim, suit or action is based upon an allegation that: (a) the indemnifying Party’s performance of any of its obligations contemplated under the Agreement infringes on any rights of any third party (including, without limitation, any intellectual property rights, privacy rights or publicity rights); or (b) the indemnifying Party have breached any of its obligations, representations or warranties hereunder. The foregoing obligations are conditioned on the indemnified Party promptly notifying the indemnifying Party in writing of such claim.
15.2 The indemnified Party will promptly notify the indemnifying Party of all claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying Party’s obligations except to the extent such Party is prejudiced by such failure or delay) and will: (a) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense in connection with the defense or settlement of all claims, and (b) be entitled to participate at its own expense in the defense of all claims. The indemnified Party agrees that the indemnifying Party will have sole and exclusive control over the defense and settlement of all claims provided. The indemnifying Party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on the indemnified Party, without the indemnified Party’s prior written consent.
16. Term and Termination
16.1 The Agreement shall be effective from the Effective Date and remain valid unless it is terminated in accordance with the terms of the Agreement.
16.2 We provide You with the License on a month-to-month basis, and as such each of the Parties, may, at their sole discretion, terminate the Agreement at any time with a three (3) month notice period to the end of the month (the “Termination”). The terminating Party must provide the written notice of Termination by email.
16.3 Either Party may terminate the Agreement with immediate effect by written notice to the other Party if: (i) the other Party commits a material breach of the Agreement and fails to remedy the breach (if remediable) within fourteen (14) days of receiving written notice to that effect specifying the breach and requiring it to be remedied; (ii) the other Party ceases to conduct its business operations; or (iii) the other Party enters into a composition with its creditors or goes into liquidation, or is dissolved, or adjudged insolvent or is otherwise rendered incapable of performing its obligations under the Agreement without the consent of a third party.
16.4 We may suspend the License (the “Suspension”) at any time, with or without advance notice, where: (a) You are in material breach of the Agreement; (b) any Offers are unsuitable for the Platform for any reason including, without limitation, that the Offers contain, or link to, content that is of adult or explicit nature, offensive, indecent, harmful, threatening, defamatory, obscene, harassing or otherwise unlawful; (c) You, at any time, are conducting commercial activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations; or (d) any of Your invoices is overdue.
16.5 Upon Termination or Suspension of the Agreement, the following terms apply: (i) We shall block all Your user accesses, terminate all Your Offers and cancel all Your other related services; (ii) If You are using the Platform, You must either stop tracking transactions in the Platform, remove Our SDK from Your mobile app(s), or request a DNS shutdown of Your account in writing; (iii) You must remove all Our links, logos, references and other information, including, but not limited to, container tags, folders, conversion pixels and referring links (the “Links”) and confirm to Us in writing that all Links are removed; (iv) the License and any and all other licenses and rights granted to You in connection with the Agreement shall immediately terminate; (v) all confidential and proprietary information of Us that is in Your possession or control must be immediately returned or destroyed. If requested, You shall certify in writing that all such confidential and proprietary information has been returned or destroyed; and (vi) You are responsible for settling any outstanding balances in accordance with Section 9.
16.6 Obligations that, by their nature, would survive any Termination of the Agreement including, without limitation, Sections 9, 12, 13, 14, 15 and 16 shall survive any Termination of the Agreement.
17. Representations and Warranties
Each Party represents and warrants that: (a) it will make no false or misleading representations, warranties or guarantees with respect to the other Party and all material aspects of the other Party’s business including, but not limited to, its products and services; (b) it has the authority and capacity to enter into the Agreement and it is not subject to any restrictive covenant or other legal obligation; (c) it shall perform its obligations under the Agreement in a timely, competent and professional manner and with all reasonable care and skill; and (d) it will comply with all applicable laws and regulations and will maintain any permits, licenses and approvals required to perform its obligations hereunder.
18. Governing Law
The Agreement, and Your relationship with Us under the Agreement, will be governed by and construed in accordance with the laws of Norway, without regard to its law provisions. Any claim, dispute or matter arising under or in connection with the Agreement shall be resolved mutually through negotiation to the extent possible. In the event the Parties fail to resolve any dispute arising hereunder through mutual negotiation, each Party shall irrevocably submit to the exclusive jurisdiction of the courts of Norway.
19. Entire Agreement
19.1 The Agreement constitutes the entire and exclusive agreement between the Parties with respect to the subject matter hereof, superseding any prior agreements, negotiations and discussions (both written and oral) between the Parties relating thereto.
19.2 The Agreement may be executed in two counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
20. Agreement Hierarchy
21. Force Majeure
Neither party shall be liable, or be considered to be in breach of the Agreement, on account of either Party’s failure or delay in the performance of its obligations as required under the terms of the Agreement for any cause beyond the reasonable control of such Party, including but not limited to electrical outages, failure of internet service providers, default due to internet disruption caused by denial of service attacks, riots, insurrection, war (or similar), fires, flood, earthquakes and explosions.
We may assign or otherwise transfer the Agreement or any rights and obligations hereunder, in whole or in part, to any person or entity without Your consent. The rights granted to You under the Agreement may not be assigned without Our prior written consent which should not be unreasonably withheld, and any attempted unauthorized assignment by You shall be null and void.
The unenforceability of any single provision of the Agreement shall not affect any other provision hereof. Where such a provision is held to be unenforceable, the Parties shall use their best endeavors to negotiate and agree upon an enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the unenforceable provision.
Data processing terms
Vendor and Company are hereinafter jointly referred to as the “parties” and individually as the “party”.
The terms used in the DPT shall have the meanings set forth in the DPT. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect. Except where the context requires otherwise, references in the DPT to the Principal Agreement are to the Principal Agreement as amended by, and including, the DPT.
In connection with the Services, the parties anticipate that Vendor, each Vendor Affiliate, each Contracted Processor and/or each Subprocessor may process outside of the European Economic Area (“EEA”) and United Kingdom, certain Company Personal Data in respect of which any Company Group Member may be a Controller, as applicable, under applicable EU Data Protection Laws. The parties have agreed to enter into the DPT in order to ensure that adequate safeguards are put in place with respect to the protection of such Company Personal Data as required by EU Data Protection Laws.
In the course of providing the Services to Company pursuant to the Principal Agreement, Vendor and each Vendor Affiliate may Process Company Personal Data on behalf of any Company Group Member. Vendor agrees to comply with the following provisions with respect to any Company Personal Data submitted by or for any Company Group Member to Vendor or collected and processed by or for any Company Group Member using Vendor’s services.
The parties agree that the obligations under the DPT that are specific to the GDPR shall not apply until the GDPR has come into full force and effect.
1.1 In the DPT, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 “Adequate Country” means a country or territory that is recognized under EU Data Protection Laws as providing adequate protection for Company Personal Data;
1.1.2 “Applicable Laws” means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;
1.1.3 “Company Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Company, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.1.4 “Company Group Member” means Company or any Company Affiliate;
1.1.5 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Company Group Member pursuant to or in connection with the Principal Agreement;
1.1.6 “Contracted Processor” means Vendor or a Subprocessor;
1.1.7 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.8 “EEA” means the European Economic Area;
1.1.9 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.10 “GDPR” means the General Data Protection Regulation (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);
1.1.11 “Restricted Transfer” means:
126.96.36.199 a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or
188.8.131.52 an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 8.5.2 or 14 below;
1.1.12 “Services” means the services and other activities to be supplied to or carried out by or on behalf of Vendor for Company Group Members pursuant to the Principal Agreement;
1.1.13 “Standard Contractual Clauses” means the contractual clauses set out in Exhibit 1, amended as indicated in that Exhibit and under section 15.4;
1.1.14 “Subprocessor” means any person (including any third party and any Vendor Affiliate, but excluding an employee of Vendor or any of its sub-contractors) appointed by or on behalf of Vendor or any Vendor Affiliate to Process Personal Data on behalf of any Company Group Member in connection with the Principal Agreement; and
1.1.15 “Vendor Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Vendor, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.3 The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. Details of Processing of Company Personal Data
2.1 Subject-Matter and Nature of the Processing. The subject-matter of Processing of Company Personal Data by Contracted Processor is the provision of the Services to any Company Group Member that involves the Processing of Company Personal Data. Company Personal Data will be subject to those Processing activities as may be specified in the Principal Agreement.
2.2 Duration of the Processing. Company Personal Data will be Processed for the duration of the Principal Agreement.
2.3 Purpose of the Processing. Company Personal Data will be Processed for purposes of providing the Services set out and otherwise agreed to in the Principal Agreement.
2.4 Types of Personal Data. Online identifiers, including cookie identifiers, internet protocol addresses and device identifiers, Company identifiers.
2.5 Categories of Data Subjects. Company Personal Data will concern the following categories of Data Subjects:
2.5.1 Data Subjects about whom Vendor and each Vendor Affiliate collect personal data in its provision of the Services; and/or
2.5.2 Data Subjects about whom personal data is transferred to Vendor and/or Vendor Affiliate in connection with the Services by, at the direction of, or on behalf of any Company Group Member.
Depending on the nature of the Services, these Data Subjects may include individuals: (a) to whom online advertising has been, or will be, directed; (b) who have visited specific websites or applications in respect of which Vendor and/or Vendor Affiliate provide the Services; and/or (c) who are customers or users of Company Group Member’s products or services.
3. Status of the parties
3.1 Each party warrants in relation to Company Personal Data that it will comply with EU Data Protection Laws. As between the parties, the Company shall have sole responsibility for the accuracy, quality, and legality of Company Personal Data and the means by which the Company acquired Company Personal Data.
3.2 Each party shall appoint an individual within its organization authorized to respond from time to time to enquiries regarding the Company Personal Data and each party shall deal with such enquiries promptly.
Vendor warrants and represents that, before any Vendor Affiliate Processes any Company Personal Data on behalf of any Company Group Member, Vendor’s entry into the DPT as agent for and on behalf of that Vendor Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Vendor Affiliate.
5. Processing of Company Personal Data
5.1 Vendor and each Vendor Affiliate shall:
5.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
5.1.2 not Process Company Personal Data other than on the relevant Company Group Member’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Vendor or the relevant Vendor Affiliate shall to the extent permitted by Applicable Laws inform the relevant Company Group Member of that legal requirement before the relevant Processing of that Personal Data.
5.2 Each Company Group Member:
5.2.1 instructs Vendor and each Vendor Affiliate (and authorises Vendor and each Vendor Affiliate to instruct each Subprocessor) to:
184.108.40.206 Process Company Personal Data; and
220.127.116.11 in particular, transfer Company Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
5.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 5.2.1 on behalf of each relevant Company Affiliate.
5.3 Section 2 of the DPT sets out certain information regarding the Contracted Processors’ Processing of the Company Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Nothing in Section 2 confers any right or imposes any obligation on any party to the DPT.
6. Vendor and Vendor Affiliate Personnel
Vendor and each Vendor Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
7.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Vendor and each Vendor Affiliate shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
7.2 In assessing the appropriate level of security, Vendor and each Vendor Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
8.1 Each Company Group Member authorises Vendor and each Vendor Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 8 to appoint) Subprocessors in accordance with this section 8 and any restrictions in the Principal Agreement.
8.2 Vendor and each Vendor Affiliate may continue to use those Subprocessors already engaged by Vendor or any Vendor Affiliate as at the date of the DPT, including, but not limited to Amazon Web Services, OVH and Hetzner Online as third party data center operators, and affiliates, publishers, ad media, media buyers, ad networks, demand side platforms (DSP), supply side platforms (SSP), outsourced marketing, business, engineering, customer support and traffic providers to support the performance of the Services.
8.3 Each Company Group Member grants a general authorization: (a) to Vendor to appoint other Vendor Affiliates as Subprocessors, and (b) to Vendor and each Vendor Affiliate to appoint third party data center operators, and affiliates, publishers, ad media, media buyers, ad networks, demand side platforms (DSP), supply side platforms (SSP), outsourced marketing, business, engineering, customer support and traffic providers to support the performance of the Services. For the avoidance of doubt, the above general authorization constitutes each Company Group Member’s prior written consent to the subprocessing by Vendor and each Vendor Affiliate for purposes of Clause 11 of the Standard Contractual Clauses.
8.4 Vendor will maintain a list of Subprocessors in the Company’s Interface on the Vendor’s domain and will add the names of new and replacement Subprocessors to the list prior to them starting sub-Processing of Company Personal Data. If the Company has a reasonable objection to any new or replacement Subprocessor, it shall notify Vendor of such objections in writing within ten (10) days of the Subprocessor’s inclusion on the list and the parties will seek to resolve the matter in good faith. If Vendor is reasonably able to provide the Services to Company in accordance with the Principal Agreement without using the Subprocessor and decides in its sole discretion to do so, then Company will have no further rights under this clause 8.4 in respect of the proposed use of the Subprocessor. If Vendor requires use of the Subprocessor in its sole discretion and is unable to satisfy Company as to the suitability of the Subprocessor or the documentation and protections in place between Vendor and the Subprocessor within ninety (90) days from the Company’s notification of objections, the Company may within thirty (30) days following the end of the ninety (90) day period referred to above, terminate the applicable Insertion Order(s) with at least thirty (30) days written notice, solely with respect to the service(s) to which the proposed new Subprocessor’s Processing of Company Personal Data relates. If Company does not provide a timely objection to any new or replacement Subprocessor in accordance with this clause 8.4, Company will be deemed to have consented to the Subprocessor and waived its right to object. Vendor and each Vendor Affiliate and may use a new or replacement Subprocessor whilst the objection procedure in this clause 8.4 is in process.
8.5 With respect to each Subprocessor, Vendor or the relevant Vendor Affiliate shall:
8.5.1 ensure that the arrangement between on the one hand (a) Vendor, or (b) the relevant Vendor Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in the DPT and meet the requirements of article 28(3) of the GDPR, and shall remain liable to the Company for the performance of Subprocessor’s obligations;
8.5.2 if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand (a) Vendor, or (b) the relevant Vendor Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, or before the Subprocessor first Processes Company Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant Company Group Member(s) (and Company shall procure that each Company Affiliate party to any such Standard Contractual Clauses cooperates with their population and execution); and
8.6 Vendor and each Vendor Affiliate shall ensure that each Subprocessor performs the obligations under sections 5.1, 6, 7, 9, 11 and 13.1, as they apply to Processing of Company Personal Data carried out by that Subprocessor, as if it were party to the DPT in place of Vendor.
9. Data Subject Rights
Taking into account the nature of the Processing, Vendor and each Vendor Affiliate shall assist each Company Group Member by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company Group Members’ obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws (including access, rectification, restriction, deletion or portability of Company Personal Data, as applicable). If such request is made directly to Vendor or any Vendor Affiliate, Vendor shall promptly inform Company and shall advise Data Subjects to submit their request to Company. Company shall be solely responsible for responding to any Data Subject request. Company shall reimburse Vendor for the costs arising from this assistance.
10. Personal Data Breach
Vendor shall notify Company without undue delay upon Vendor or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow each Company Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
11. Data Protection Impact Assessment and Prior Consultation
Vendor and each Vendor Affiliate shall provide reasonable assistance to each Company Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required of any Company Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
12. Deletion or return of Company Personal Data
12.1 Other than to the extent required to comply with EU Data Protection Law, following termination or expiry of the Principal Agreement, Vendor and each Vendor Affiliate shall promptly delete and procure the deletion of all copies of the Company Personal Data. If Vendor is unable to delete Company Personal Data for technical or other reasons, Vendor will apply measures to ensure that Company Personal Data is blocked from any further Processing.
12.2 Subject to section 12.3, Company may in its absolute discretion by written notice to Vendor within 10 days from the termination or expiry of the Principal Agreement require Vendor and each Vendor Affiliate to (a) return a complete copy of all Company Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to Vendor; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor.
12.3 Each Contracted Processor may retain Company Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Vendor and each Vendor Affiliate shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
13. Audit rights
13.1 Subject to sections 13.2 and 13.3, Vendor and each Vendor Affiliate shall make available to each Company Group Member on request all information necessary to demonstrate compliance with the DPT, and shall allow for and contribute to audits, including inspections, by any Company Group Member or an auditor mandated by any Company Group Member in relation to the Processing of the Company Personal Data by the Contracted Processors.
13.2 Information and audit rights of the Company Group Members only arise under section 13.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
13.3 Company or the relevant Company Affiliate undertaking an audit shall give Vendor or the relevant Vendor Affiliate reasonable notice of any audit or inspection to be conducted under section 13.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
13.3.1 to any individual unless he or she produces reasonable evidence of identity and authority;
13.3.2 outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company or the relevant Company Affiliate undertaking an audit has given notice to Vendor or the relevant Vendor Affiliate that this is the case before attendance outside those hours begins; or
13.3.3 for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which:
18.104.22.168 Company or the relevant Company Affiliate undertaking an audit reasonably considers necessary because of genuine concerns as to Vendor’s or the relevant Vendor Affiliate’s compliance with the DPT; or
22.214.171.124 A Company Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Company or the relevant Company Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Vendor or the relevant Vendor Affiliate of the audit or inspection.
14. Restricted Transfers
14.1 Subject to section 14.3, each Company Group Member (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Company Group Member to that Contracted Processor.
14.2 The Standard Contractual Clauses shall come into effect under section 14.1 on the later of:
14.2.1 the data exporter becoming a party to them;
14.2.2 the data importer becoming a party to them; and
14.2.3 commencement of the relevant Restricted Transfer.
14.3 Section 14.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
15. General Terms
Governing law and jurisdiction
15.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
15.1.1 the parties to the DPT hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under the DPT, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
15.1.2 the DPT and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
Order of precedence
15.2 Nothing in the DPT reduces Vendor’s or any Vendor Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Vendor or any Vendor Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between the DPT and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
15.3 Subject to section 15.2, with regard to the subject matter of the DPT, in the event of inconsistencies between the provisions of the DPT and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of the DPT, the provisions of the DPT shall prevail.
Changes in Data Protection Laws, etc.
15.4 Company may:
15.4.1 by at least 30 (thirty) calendar days’ written notice to Vendor from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 14.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
15.4.2 propose any other variations to the DPT which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.
15.5 If Company gives notice under section 15.4.1:
15.5.1 Vendor and each Vendor Affiliate shall promptly cooperate (and ensure that any affected Subprocessors promptly cooperate) to ensure that equivalent variations are made to any agreement put in place under section 8.5.2; and
15.5.2 Company shall not unreasonably withhold or delay agreement to any consequential variations to the DPT proposed by Vendor to protect the Contracted Processors against additional risks associated with the variations made under section 15.4.1 and/or 15.5.1.
15.6 If Company gives notice under section 15.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company’s notice as soon as is reasonably practicable.
15.7 Neither Company nor Vendor shall require the consent or approval of any Company Affiliate or Vendor Affiliate to amend the DPT pursuant to this section 15.5 or otherwise.
15.8 Should any provision of the DPT be invalid or unenforceable, then the remainder of the DPT shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
EXHIBIT 1: Standard Contractual Clauses
These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law (otherwise).
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
Both parties have agreed on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Section 2 of the DPT.
The data exporter has entered into a data processing DPT (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
2. Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
3. Third-party beneficiary clause
3.1 The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
4. Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
5. Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
7. Mediation and jurisdiction
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
8. Cooperation with supervisory authorities
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
9. Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
10. Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
11.2 The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
12. Obligation after the termination of personal data processing services
12.1 The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is the Demand Partner, as defined in the Principal Agreement.
The data importer is Target Circle, as defined in the Principal Agreement.
Categories of Data Subjects set out under Section 2 of the DPT to which the Clauses are attached.
Categories of data
Categories of Company Personal Data set out under Section 2 of the DPT to which the Clauses are attached.
Special categories of data (if appropriate)
The parties do not anticipate the transfer of special categories of data.
The objective of the Processing of Company Personal Data by Vendor and each Vendor Affiliate is to provide the Services, pursuant to the Principal Agreement.
The obligations and rights of Company Group Members
The obligations and rights of Company Group Members are set out in the Principal Agreement and the DPT.
APPENDIX 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document /legislation attached):
Contracted Processor currently observes the security practices described in this Appendix 2. Notwithstanding any provision to the contrary otherwise agreed to by data exporter, Contracted Processor may modify or update these practices at its discretion provided that such modification and update does not result in a material degradation in the protection offered by these practices. All capitalised terms not otherwise defined herein shall have the meanings as set forth in the Principal Agreement.
1. Preventing Unauthorised Product Access
Outsourced processing: Contracted Processor hosts its Services with outsourced (cloud) infrastructure providers. Additionally, Contracted Processor maintains contractual relationships with contractors in order to provide the Services in accordance with the DPT. Contracted Processor relies on contractual agreements, privacy policies, and contractor compliance programs in order to protect data processed or stored by these contractors.
Physical and environmental security: Contracted Processor hosts its product infrastructure on dedicated servers with outsourced infrastructure providers. The physical and environmental security controls are audited for ISO 27001 compliance, among other certifications.
Authentication: Contracted Processor implemented a uniform password policy for its Company products. Clients who interact with the products via the Interface must authenticate before accessing non-public Company data.
Authorisation: Client data is stored in multi-tenant storage systems accessible to Company via only application user interfaces and application programming interfaces. Clients are not allowed direct access to the underlying application infrastructure. The authorisation model is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customisation options. Authorisation to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
Application Programming Interface (API) access: Public product APIs may be accessed using an API token.
2. Preventing Unauthorised Product Use
Contracted Processor implements industry standard access controls and detection capabilities for the internal networks that support its products.
Intrusion detection and prevention: Contracted Processor implemented a Web Application Firewall (WAF) solution to protect its internet-accessible applications. The WAF is designed to identify and prevent attacks against publicly available network services.
Static code analysis: Security reviews of code stored in Contracted Processor’s source code repositories is performed, checking for coding best practices and identifiable software flaws.
3. Limitations of Privilege & Authorization Requirements
Product access: Contracted Processor’s employees have access to the products and to Company data via controlled interfaces. The intent of providing access to employees is to provide effective Company support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security.
4. Separation of Processed Data
Contracted Processor collects cookie identifiers, tracking identifiers and device identifiers for the sole purpose of accurately tracking the success of the Company’s advertising campaigns and to attribute their success to the right publisher. Any identifier that is redundant for this purpose can be separately excluded from collection.
In-transit: Contracted Processor makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces. Contracted Processor’s HTTPS implementation uses industry standard algorithms and certificates.
At-rest: Contracted Processor stores user passwords following policies that follow industry standard practices for security. IP addresses are anonymised by data masking, device identifiers and tracking identifiers are pseudonymised by hashing.
Detection: Contracted Processor designed its infrastructure to log extensive information about the system behaviour, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. Contracted Processor personnel are responsive to known incidents.
Response and tracking: Contracted Processor maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, Contracted Processor will take appropriate steps to minimise product and Company damage or unauthorised disclosure.
Communication: If Contracted Processor becomes aware of unlawful access to Company data stored within its products, Contracted Processor will: 1) notify the affected Company of the incident; 2) provide a description of the steps Contracted Processor is taking to resolve the incident; and 3) provide status updates to the Company contact, as Contracted Processor deems necessary. Notification(s) of incidents, if any, will be delivered to one or more of the Company’s contacts in a form Contracted Processor selects, which may include via email or telephone.
Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.9% uptime.
Fault tolerance: Backup and replication strategies are designed to ensure redundancy and failover protections during a significant processing failure. Client data is backed up to multiple durable data stores.
Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.
Contracted Processor’s products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists Contracted Processor in maintaining and updating the product applications and backend while limiting downtime.