Data Processing Addendum
This Data Processing Addendum (“DPA”) is effective upon execution of an Order Form to which this DPA is attached or referencing these terms (each, an “Agreement”), by and between ChannelApe, Inc. (“ChannelApe”) and the party named as Customer in the Agreement. Capitalized terms used but not defined in this DPA shall have the meanings given to them in the Agreement. The parties intend this DPA to be an extension of the Agreement that will outline certain requirements for the processing of personal data provided or made available by Customer, or collected or otherwise obtained by ChannelApe, in the course of providing Services to Customer.
- “Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC (as amended by Directive 2009/136/EC) and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them (including the General Data Protection Regulation (Regulation (EU) 2016/279)).
- “Good Industry Practice” means, in relation to any activity and under any circumstance, exercising the same skill, expertise and judgement and using facilities and resources of a similar or superior quality as would be expected from a person who: (a) is skilled and experienced in providing the services in question, seeking in good faith to comply with his contractual obligations and seeking to avoid liability arising under any duty of care that might reasonably apply; (b) takes all proper and reasonable care and is diligent in performing his obligations; and (c) complies with all applicable legislation and any applicable industry standards including any recognized industry quality standards and applicable law.
- “data controller“, “data processor“, “subprocessor”, “data subject“, “personal data“, “processing“, and “appropriate technical and organizational measures” shall be interpreted in accordance with Directive 95/46/EC, or other applicable Data Protection Legislation, in the relevant jurisdiction.
- “standard contractual clauses” shall mean the model controller-to-processor contract for the transfer of personal data to third countries issued by the European Commission on the basis of Article 26(4) of Directive 95/46/EC pursuant to Decision 2010/87/EU.
- Scope. The parties agree that, as between the parties, Customer is a data controller and that ChannelApe is a processor in relation to personal data that ChannelApe processes on behalf of Customer in the course of providing the services under the Agreement (the “Services”). The subject-matter of the data processing, the types of personal data processed, and the categories of data subjects will be defined by, and/or limited to that necessary to carry out the Services described in, the Agreement. The processing will be carried out until the date ChannelApe ceases to provide the Services to Customer.
- Data Protection. In respect of personal data processed in the course of providing the Services, ChannelApe shall adhere to the following requirements:
- ChannelApe will process the personal data only in accordance with the written instructions from Customer and only in compliance with Data Protection Legislation. Such instructions may be specific or of a general nature as set out in this DPA, the Agreement, or as otherwise notified by Customer to ChannelApe in writing from time to time. The nature and purposes of the processing shall be limited that that necessary to carry out such instructions, and not for ChannelApe’s own purposes, or for any other purposes except as required by law. If ChannelApe is required by law to process the personal data for any other purpose, ChannelApe will inform Customer of such requirement prior to the processing unless prohibited by law from doing so.
- ChannelApe will process the personal data only to the extent, and in such manner, as is necessary for the provision of the Services. ChannelApe may only correct, delete or block the personal data processed on behalf of Customer as and when instructed to do so by Customer.
- ChannelApe will implement and maintain appropriate technical and organizational measures to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall take 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. The measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of the personal data and having regard to the nature of the personal data which is to be protected and as a minimum shall be in accordance with the Data Protection Legislation and Good Industry Practice. Such measures shall include, as appropriate:
- the pseudonymisation and encryption of personal data;
- the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
- the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
- a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
- ChannelApe will not give access to or transfer any personal data to any third party (including any affiliates, group companies or sub-contractors) without giving Customer prior notice and a reasonable opportunity to object, which, if not exercised within 30 days of receipt of such notice shall be deemed to constitute an approval of such access or transfer; notwithstanding the foregoing, the sub-contractors listed on Exhibit 1 attached hereto are deemed pre-approved by Customer, subject to the conditions contained herein. Where Customer does not object in good faith on grounds related to data protection to ChannelApe engaging a sub-contractor to carry out any part of the Services, ChannelApe must ensure the reliability and competence of such third party, its employees or agents who may have access to the personal data processed in the provision of the Services, and must include in any contract with such third party provisions in favor of Customer which are substantially equivalent to those in this DPA and the Agreement and as are required by applicable Data Protection Legislation. For the avoidance of doubt, where a third party fails to fulfil its obligations under any sub-processing agreement or any applicable Data Protection Legislation, ChannelApe will remain fully liable to Customer for the fulfilment of its obligations under this DPA and the Agreement.
- ChannelApe will take reasonable steps to ensure the reliability and competence of any ChannelApe personnel who have access to the personal data.ChannelApe will ensure that all ChannelApe personnel required to access the personal data are informed of the confidential nature of the personal data and comply with the obligations set out in this DPA.
- ChannelApe will take all reasonable steps to assist Customer in meeting Customer’s obligations under applicable Data Protection Legislation, including Customer’s obligation to respond to requests by data subjects to exercise their rights with respect to personal data, adhere to data security obligations, respond to data breaches and other incidents involving personal data, conduct data protection impact assessments, and consult with supervisory authorities. ChannelApe will promptly inform Customer in writing if it receives: (i) a request from a data subject concerning any personal data; or (ii) a complaint, communication, or request relating to Customer’s obligations under Data Protection Legislation.
- ChannelApe will not retain any of the personal data for longer than is necessary to provide the Services. At the end of the Services, or upon Customer’s request, ChannelApe will securely destroy or return (at Customer’s election) the personal data to Customer.
- With regard to personal data related to data subjects located in the European Economic Area, ChannelApe will not process such personal data in a location outside the European Economic Area, except:
- with the prior written consent of Customer and on the documented instructions of Customer (including to the extent set forth in the Agreement);
- by taking such steps as may reasonably be required by Customer on an ongoing basis to ensure there is adequate protection for such personal data in accordance with applicable Data Protection Legislation; and
- pursuant to the standard contractual clauses, which the parties will enter into.
- ChannelApe will allow Customer and its respective auditors or authorized agents to conduct reasonable audits and inspections during the term of the Agreement, solely to allow Customer to verify that ChannelApe is processing personal data in accordance with its obligations under this DPA, the Agreement, and applicable Data Protection Legislation.
- If ChannelApe becomes aware of any accidental, unauthorized or unlawful destruction, loss, alteration, or disclosure of, or access to the personal data that is processed by ChannelApe in the course of providing the Services under the Agreement (a “Security Breach”):
- it shall within 72 hours and without undue delay notify Customer and provide Customer with: a detailed description of the Security Breach; the type of data that was the subject of the Security Breach; the identity of each affected person, and the steps ChannelApe takes in order to mitigate and remediate such Security Breach, in each case as soon as such information can be collected or otherwise becomes available (as well as periodic updates to this information and any other information Customer may reasonably request relating to the Security Breach); and
- take action immediately, at its own expense, to investigate the Security Breach and to identify, prevent and mitigate the effects of the Security Breach and, with the prior written approval of Customer, to carry out any recovery or other action necessary to remedy the Security Breach.
- ChannelApe shall comply at all times with, and assist Customer in complying with its applicable obligations under, Data Protection Legislation. ChannelApe shall provide any information requested by Customer to demonstrate compliance with the obligations set out in this DPA. ChannelApe shall not perform its obligations under the Agreement or this DPA in such a way as to cause Customer to breach any of its obligations under applicable Data Protection Legislation.
- ChannelApe will notify Customer immediately if, in ChannelApe’s reasonable opinion, an instruction for the processing of personal data given by Customer infringes applicable Data Protection Legislation.
Last Updated: February 16, 2021