SUBPROCESSOR DATA PROCESSING ADDENDUM
Capitalized terms used but not defined in this Data Processing Addendum ("DPA") shall have the meanings given to them in the Agreement to which this DPA is linked. 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 ChannelApe, or collected or otherwise obtained by Subcontractor, in the course of providing Services to ChannelApe.
- "Data Protection Legislation" means European Directive 2002/58/EC (as amended by Directive 2009/136/EC), the General Data Protection Regulation 2016/679 (the "GDPR") and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them.
- "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.
- "controller", "processor", "data subject", "personal data", "processing", and "appropriate technical and organizational measures" shall be interpreted in accordance with the GDPR, 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, ChannelApe is a processor (acting on behalf of its Customer as controller) and that Subcontractor is a processor in relation to personal data that Subcontractor processes on behalf of ChannelApe in the course of providing 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 Subcontractor ceases to provide the Services to ChannelApe.
- Data Protection. In respect of personal data processed in the course of providing the Services, Subcontractor shall adhere to the following requirements:
- Subcontractor will process the personal data only in accordance with the written instructions from ChannelApe 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 ChannelApe to Subcontractor 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 Subcontractor's own purposes, or for any other purposes except as required by law. If Subcontractor is required by law to process the personal data for any other purpose, Subcontractor will inform ChannelApe of such requirement prior to the processing unless prohibited by law from doing so.
- Subcontractor will process the personal data only to the extent, and in such manner, as is necessary for the provision of the Services. Subcontractor may only correct, delete or block the personal data processed on behalf of ChannelApe as and when instructed to do so by ChannelApe.
- Subcontractor 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.
- Subcontractor will not give access to or transfer any personal data to any third party (including any affiliates, group companies or sub-contractors) without giving ChannelApe 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. Where ChannelApe does not object in good faith on grounds related to data protection to Subcontractor engaging a sub-contractor to carry out any part of the Services, Subcontractor 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 ChannelApe 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, Subcontractor will remain fully liable to ChannelApe for the fulfilment of its obligations under this DPA and the Agreement.
- Subcontractor will take reasonable steps to ensure the reliability and competence of any Subcontractor personnel who have access to the personal data.Subcontractor will ensure that all Subcontractor 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.
- Subcontractor will take all reasonable steps to assist ChannelApe in meeting ChannelApe’s obligations under applicable Data Protection Legislation, including ChannelApe’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. Subcontractor will promptly inform ChannelApe 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 ChannelApe’s obligations under Data Protection Legislation.
- Subcontractor 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 ChannelApe's request, Subcontractor will securely destroy or return (at ChannelApe’s election) the personal data to ChannelApe.
- Subcontractor will allow ChannelApe and its respective auditors or authorized agents to conduct reasonable audits and inspections during the term of the Agreement, solely to allow ChannelApe to verify that Subcontractor is processing personal data in accordance with its obligations under this DPA, the Agreement, and applicable Data Protection Legislation.
- If Subcontractor becomes aware of any accidental, unauthorized or unlawful destruction, loss, alteration, or disclosure of, or access to the personal data that is processed by Subcontractor in the course of providing the Services (a "Security Breach"):
- it shall within 72 hours and without undue delay notify ChannelApe and provide ChannelApe 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 Subcontractor 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 ChannelApe 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 ChannelApe, to carry out any recovery or other action necessary to remedy the Security Breach.
- Subcontractor shall comply at all times with, and assist ChannelApe in complying with its applicable obligations under, Data Protection Legislation. Subcontractor shall provide any information requested by ChannelApe to demonstrate compliance with the obligations set out in this DPA. Subcontractor shall not perform its obligations under the Agreement or this DPA in such a way as to cause ChannelApe to breach any of its obligations under applicable Data Protection Legislation.
- Subcontractor will notify ChannelApe immediately if, in Subcontractor's reasonable opinion, an instruction for the processing of personal data given by ChannelApe infringes applicable Data Protection Legislation.
Last Update: June 18, 2021