Last Updated: SEPTEMBER 6, 2019
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“Addendum”) forms part of the Master Services Agreement available at http://www.olapic.com/msa-us/, http://www.olapic.com/msa-uk/, or other applicable services agreement (the “MSA“) between Olapic, Inc. (“Olapic”) and Customer (as defined in the MSA), and shall be effective as of the effective date of the MSA.
The terms used in this Addendum shall have the meanings set forth herein. Capitalized terms not otherwise defined herein shall have the meaning given to them in the MSA. Except as modified below, the terms of the MSA shall remain in full force and effect.
By using the Services and Executing an Order, Customer agrees that Customer is bound by the terms of this Addendum. Each time Customer uses the Services, the current version of this Addendum will apply for use of the Services from the date of Customer’s first access. Accordingly, when using the Services, Customer should check the date of this Addendum and review any changes since the last version. If Customer does not agree with this Addendum at any time, Customer should cease using the Services.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an addendum to the MSA. Except where the context requires otherwise, references in this Addendum to the MSA are to the MSA as amended by, and including, this Addendum.
1.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 “Applicable Laws” means (a) European Union or Member State laws with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to any other Data Protection Laws;
1.1.2 “Customer Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, 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;
1.1.3 “Customer Group Member” means Customer or any Customer Affiliate;
1.1.4 “Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Customer Group Member pursuant to or in connection with the MSA;
1.1.5 “Contracted Processor” means Olapic or a Subprocessor;
1.1.6 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.7 “EEA” means the European Economic Area;
1.1.8 “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 as well as other data protection laws which may be applicable in the EU;
1.1.9 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.10 “Member State” means each party to the founding treaties of the European Union;
1.1.11 “Restricted Transfer” means an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor, 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 a contractual framework which offers at least the same level of protection as this Addendum. For the avoidance of doubt, where a transfer of Personal Data is of a type authorized by Data Protection Laws in the exporting country, for example in the case of transfers from within the European Union to a country (such as Switzerland) or scheme (such as the US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer;
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 MSA or other applicable services agreement;
1.1.13 “Standard Contractual Clauses” means an agreement that is executed between a Controller and a Processor pursuant to the European Commission’s decision (C(2010)593) of February 5, 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection;
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 MSA or other applicable services 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”, “Processor” 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. Processing of Company Personal Data
2.1 Vendor and each Vendor Affiliate shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
2.1.2 not Process Company Personal Data other than on the relevant Company Group Member’s documented instructions (including, but not limited to, instructions under section 2.2.1 herein) 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.
2.2 Each Company Group Member:
2.2.1 instructs Vendor and each Vendor Affiliate (and authorises Vendor and each Vendor Affiliate to instruct each Subprocessor) to (i) Process Company Personal Data; and (ii) in particular, transfer Company Personal Data to any country or territory, both as reasonably necessary for the provision of the Services and consistent with the MSA or other applicable services agreement; and
2.2.2 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 2.2.1 on behalf of each relevant Company Affiliate.
2.3 Annex 1 to this Addendum 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 Annex 1 (including as amended pursuant to this section 2.3) confers any right or imposes any obligation on any party to this Addendum.
3. 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 or access the relevant Company Personal Data, as strictly necessary for the purposes of the MSA or other applicable services 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.
4.1 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.
4.2 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.
5.1 Each Company Group Member authorises Vendor and each Vendor Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 5 to appoint) Subprocessors in accordance with this section 5 and any restrictions in the MSA or other applicable services agreement.
5.2 Vendor and each Vendor Affiliate may continue to use those Subprocessors already engaged by Vendor or any Vendor Affiliate as at the date of this Addendum, subject to Vendor and each Vendor Affiliate in each case as soon as practicable meeting the obligations set out in section 5.4.
Vendor shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within fourteen (14) calendar days of receipt of that notice, Company notifies Vendor in writing of any objections (on reasonable grounds) to the proposed appointment: Neither Vendor nor any Vendor Affiliate shall appoint (or disclose any Company Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by any Company Group Member and Company has been provided with a reasonable written explanation of the steps taken.
5.3 With respect to each Subprocessor, Vendor or the relevant Vendor Affiliate shall:
5.3.1 before the Subprocessor first Processes Company Personal Data (or, where relevant, in accordance with section 5.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Company Personal Data required by the MSA or other applicable services agreement and this Addendum;
5.3.2 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 this Addendum and meet the requirements of article 28(3) of the GDPR;
5.3.3 if that arrangement involves a Restricted Transfer, ensure that contractual clauses which provide for at least the same level of protection as this Addendum are at all relevant times incorporated into an 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 contractual clauses which provide for at least the same level of protection as this Addendum with the relevant Company Group Member(s) (and Company shall procure that each Company Affiliate party to any such contractual clauses co-operates with their population and execution); and
5.3.4 provide to Company for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Company may request from time to time.
5.4 Vendor and each Vendor Affiliate shall ensure that each Subprocessor performs the obligations under sections 2.1, 3, 4, 6.1, 7.2, 8 and 10.1, as they apply to Processing of Company Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Vendor.
6. Data Subject Rights
6.1 Vendor shall:
6.1.1 without undue delay notify Company if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
6.1.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Vendor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
7.1 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.
7.2 Vendor shall co-operate with Company and each Company Group Member and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Technical and Organizational Measures; Data Protection Impact Assessment and Prior Consultation
8.1 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.
8.2 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.
9. Deletion or return of Company Personal Data
9.1 Subject to sections 9.2 and 9.3 Vendor and each Vendor Affiliate shall without undue delay and in any event within thirty (30) calendar days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.
9.2 Subject to section 9.3, Company may in its absolute discretion by written notice to Vendor within thirty (30) calendar days of the Cessation Date 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. Vendor and each Vendor Affiliate shall comply with any such written request within thirty (30) calendar days of the Cessation Date.
9.3 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.
9.4 Vendor shall provide written certification to Company that it and each Vendor Affiliate has fully complied with this section 9 within thirty (30) calendar days of the Cessation Date.
10. Audit rights
10.1 Subject to sections 10.2 and 10.3, Vendor and each Vendor Affiliate shall make available to each Company Group Member on request all information necessary to demonstrate compliance with this Addendum, 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.
10.2 Information and audit rights of the Company Group Members only arise under section 10.1 to the extent that the MSA or other applicable services 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).
10.3 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 10.1 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:
10.3.1 to any individual unless he or she produces reasonable evidence of identity and authority;
10.3.2 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
10.3.3 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:
10.3.3.1 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 this Addendum; or
10.3.3.2 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.
11.1 Vendor’s aggregate liability under or in connection with this Addendum (whether in contract, tort or otherwise) is limited to the amount paid for the Services by Company under the MSA or other applicable services agreement in the twelve (12) months immediately preceding the event (or first in a series of connected events) giving rise to the liability.
11.2 Company acknowledges that the Vendor is reliant on (i) the Company’s lawful basis (inclusive of legitimate interest) for Company Personal Data collection and processing; and (ii) Company’s direction as to the extent to which Vendor is entitled to process Company Personal Data on behalf of Company in performance of the Services and transfer such Company Personal Data to third parties. Consequently Vendor will not be liable under this Addendum, the MSA or other applicable services agreement for any claim arising from any action or omission by Vendor, to the extent that such action or omission resulted directly from (a) Vendor’s reliance on the Company’s lawful basis for the collection or processing of Company Personal Data; (b) Company’s instructions to Vendor regarding the collection or processing of Company Personal Data including instructions set forth in the MSA or other applicable services agreement; (c) Company’s instructions to Vendor regarding the transfer of Company Personal Data to any third party; or (iv) from Company’s failure to comply with its obligations under the applicable data protection law.
12. General Terms
Governing law and jurisdiction
12.1 The parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the MSA or other applicable services agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity. This Addendum 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 MSA or other applicable services agreement.
Order of precedence
12.2 Nothing in this Addendum reduces Vendor’s or any Vendor Affiliate’s obligations under the MSA or other applicable services 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 MSA or other applicable services agreement. In the event of any conflict or inconsistency between this Addendum and any Standard Contractual Clauses which may be in place between a Vendor and any Subprocessor, the Standard Contractual Clauses shall prevail.
12.3 With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the MSA or other applicable services 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 this Addendum, the provisions of this Addendum shall prevail.
12.4 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum 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.
ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
This Annex 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Company Personal Data
The subject matter and duration of the Processing of the Company Personal Data are set out in the MSA and this Addendum.
The nature and purpose of the Processing of Company Personal Data
Content Engine Services: Provision of services (SaaS) which consists of crawling social media sites through an API, collecting user-generated content based on parameters set by the customer, and delivering that user-generated content to customer for publication on customer’s digital properties.
Creator Platform Services: Provision of services (SaaS) which consists of facilitating the collaboration with influential people of social networks and enabling influential people to create content or posts that incorporate branded products or messaging.
The types of Company Personal Data to be Processed
Content Engine Services: Social media user names, photos (where such photos contain personal data), social media captions (where such captions contain personal data), first/last name, email address, browser generated information, IP addresses
Creator Platform Services: Name, email address, physical address, photos (where such photos contain personal data), date of birth, location information, brand preferences, and other information published by Data Subjects on, or uploaded to, their social media profile, social media activities or provided directly by Data Subjects.
The categories of Data Subject to whom the Company Personal Data relates
Content Engine Services: End users who upload photos to social media sites, end users who directly upload photos to the Company’s website, end users who browse photo galleries on Company’s website.
Creator Platform Services: Influencers with whom Company engages with on social media sites and through the Creator Platform Services.
The obligations and rights of Company and Company Affiliates
The obligations and rights of Company and Company Affiliates are set out in the MSA and this Addendum.