Data Processing Agreement

This Data Processing Agreement (“Data Processing Agreement”, “DPA”, “Agreement”) entered into by and between Client (as defined under the Terms and Conditions) (hereinafter referred to as “Client” or “you”) and PeerClick (as defined under the Terms and Conditions) (hereinafter referred to as “PeerClick”, “us” or “we”) is effective as of 25 May, 2018 and forms an integral part of, and is subject to, PeerClick Tracker Terms and Conditions available at Client and PeerClick Inc are hereinafter jointly referred to as the “Parties” and individually as the “Party”. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms and Conditions. In the event of any conflict between this DPA and the Terms and Conditions, the terms of this DPA shall prevail. This Agreement only applies to the extent that the EU Data Protection Law applies to the Processing of Personal Data under this Agreement, including if (a) the Processing is carried out in the context of the activities of an establishment of either Party in the European Economic Area (“EEA”), and/or (b) the Personal Data relates to Data Subjects who are in the EEA and the Processing relates to the offering to them of goods or services or the monitoring of their behavior in the EEA. 1.DEFINITIONS “Controller” or “Data Controller” means the entity that determines the purposes and means of the Processing of Personal Data. “Processor” or “Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller. “Data Subject” means the individual to whom Personal Data relates, including End Users. “End User” means the end user of an internet connected device, such as a visitor to a web page, a user of a mobile app, or a user of an IoT device, or a visitor on advertisement or campaign webpage. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and 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, and repealing Directive 95/46/EC (also known as “General Data Protection Regulation”). “Personal Data” means any information relating to an identified or identifiable person as defined in Article 4.1 of the GDPR. “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction (“Process”, “Processes” and “Processed” shall have the same meaning). “Sub-Processor” means any Data Processor engaged by the Processor. “Services” means services provided by the PeerClick Inc. via PeerClick Tracker Platform in accordance with the Terms and Conditions. PROCESSING OF PERSONAL DATA 2.1. Under this DPA and with respect to Personal Data, Client is Data Controller or Processor and PeerClick Inc is engaged by Client as Processor or another Processor (Sub-Processor) in respect to Personal Data, as applicable. The terms of this Agreement shall apply to either of the relations between the Parties regarding the Processing of Personal Data mentioned herein. 2.2. Within the scope of this DPA, Client hereby engages Processor to collect, process and/or use Personal Data on Client’s behalf. 2.3. Processor will only Process Personal Data on your behalf and in accordance with your instructions. The instructions from the Client to Process Personal Data are the following: (i) Processing shall be carried out in accordance with this DPA, the Terms and Conditions and pursuant to the features and limitations of the applicable Services which Processor provides to Client; and (ii) Processing shall be carried out in compliance with other reasonable instructions provided by the Client, where such instructions are consistent with the Terms and Conditions. PeerClick will be under no obligation to comply with instructions that PeerClick deems as violating applicable laws. Processing outside the scope of this DPA (if any) will require: (i) prior written agreement between Client and the PeerClick, and (ii) Client’s additional instructions for processing. 2.4. PeerClick uses the Personal Data solely to provide the Services in accordance with Terms & Conditions, i.e. in order to perform tracking services / serve End Users with interest–based advertising, as well as to measure the effectiveness of advertising campaigns and provide you with advertising reports. In that context, the PeerClick – on your demand – may also combine Personal Data from different sources in order to improve Services and integrate Services with external platforms, all of which will be conducted on your behalf. PeerClick also processes Personal Data on your behalf and to serve your interests for the purposes of fraud prevention, bot detection, rating, analytics, viewability, ad security services. PeerClick may also process data based on the extracts of Personal Data in aggregated and non-identifiable forms, including for the purposes of testing, development, control and operation of the Services. 2.5. PeerClick may process the following information on your behalf: IP addresses, language information, session-based browsing behavior, header information, End User’s device-related data (such as the type or model of the device), operating system, wireless carrier providing communication services to such device, geographical location (geo-location) of the device, cookies, advertising identifiers of the device, as well as other information we may receive from you or from third parties engaged by the PeerClick on your behalf, such as non-precise device location based on the IP address, device specifications and user’s interest’s information. Client also authorizes PeerClick to store and use cookies or pixel tags on End User’s device on behalf of the Client in order to perform Services. Additional information regarding the types of End User’s data that may be collected or used by the Client through Services are specified in End User Privacy Policy. 2.6. Without derogating from any of the obligations of the Client hereunder, the Client shall not provide PeerClick with any data a) which by itself identifies an individual, such as name, address, phone number, email address; and b) regarding children, or any special categories of personal data, as defined under Article 9 of the GDPR, except as may otherwise be expressly agreed in writing between the Parties and in accordance with the applicable law. This type of data is not necessary to use the PeerClick’s Services. 2.7. Client is responsible for ensuring their own compliance with various laws and regulations, including the GDPR. To the extent required under the applicable law, you shall provide an appropriate notice to Data Subjects about the Processing of their Personal Data in connection with the use of Services under this DPA and under the End User Privacy Policy, and you shall receive and document the Data Subjects’ consent thereof to the extent required under the applicable law. 2.8. To the extent required under the applicable law, Client must also use commercially reasonable efforts to ensure that the End User is provided with clear and comprehensive information about cookies or other information on the End User’s device in connection with the use of Services by the Client and, if applicable, consents to their storing and accessing. To the extent required under the applicable law, Client shall inform the End User about third party cookies (or other tracking technologies) which may be placed on Client’s site(s), specifying the purpose of these cookies (e.g., targeted advertising) and the type of data collected on the Client’s site(s). Client shall also inform End Users of options to deactivate Peerclick’s cookies by including in its privacy policy a link to the PeerClick’s End User Privacy Policy and when legally compulsory, appropriate notice, consent and choice mechanisms that comply with relevant laws and regulations, including GDPR. 2.9. You acknowledge and agree that you retain sole responsibility for the lawfulness of the Processing and warrant to the PeerClick that you are legally allowed to engage the PeerClick to process Personal Data on your behalf, have provided all necessary notices and obtained all required consents from the Data Subjects (if apply) for the purposes of the Processing described in this DPA. RIGHTS OF DATA SUBJECTS 3.1. PeerClick shall notify Client via e-mail if he receives a request from a Data Subject in the subject of access to, correction, amendment, deletion of or objection to the processing of that Data Subject’s Personal Data. PeerClick shall not respond to any such Data Subject request without Client’s prior written consent, except in order to confirm that the request relates to the Client. 3.2. To the extent that Client responds to any such Data Subject request, PeerClick shall provide Client, to the extent required by law, with commercially reasonable cooperation and assistance in relation to handling of a Data Subject’s request, to the extent legally permitted. 3.3. PeerClick reserves the right to charge additional fees in relation to the cooperation with the Client in regard to this DPA. PeerClick’s PERSONNEL 4.1. PeerClick shall ensure that its personnel engaged in the Processing of Personal Data is informed of the confidential nature of the Personal Data, has received appropriate training on their responsibilities and is subject to obligations of confidentiality. Such obligations shall survive the termination of that individual’s engagement with the PeerClick. 4.2. PeerClick shall ensure that access to Personal Data is limited only to those members of personnel who require that access in order to fulfil PeerClick’s obligations under the Terms and Conditions. SECURITY 5.1. Pursuant to Article 28, Section 3(c) of the General Data Protection Regulation, the PeerClick shall take the measures required by the Article 32 of the GDPR. 5.2. PeerClick shall provide sufficient guarantees of implementation of the appropriate technical and organizational measures in a manner that the processing will meet the requirements of the GDPR and ensure the protection of the rights of the Data Subject. 5.3. PeerClick imposes appropriate contractual obligations upon its personnel that engages in the Processing of Personal Data, including relevant obligations regarding confidentiality, data protection and data security. PeerClick ensures that its applicable personnel has been properly informed of the confidential nature of the Personal Data, has received appropriate training and has executed written confidentiality agreements. PeerClick will further ensure that such confidentiality agreements will survive the termination of employment or another form of engagement of its personnel. AUDIT RIGHT 6.1. To the extent that the applicable law requires you to be in a position to monitor the adequate Processing of Personal Data, you as the Client have the right to request an audit from the PeerClick to the extent necessary to review whether we as the PeerClick and our Sub-Processors are compliant with the following regulations: (i) any provisions of the Law, (ii) the terms of this DPA, and (iii) Client’s instructions. 6.2. PeerClick may provide you with a copy of its most recent third-party audits or certifications issued by an independent, third-party auditor, as applicable, or any summaries thereof in order to fulfil your audit rights. If an audit is required by law and where its requirements cannot be fulfilled by the provision of such certification, you may conduct, either by yourself or through a third party independent contractor selected by you at your expense, an on-site audit of the PeerClick. Such audit may be conducted subject to the following terms: (i) the audit will be pre-scheduled in writing with PeerClick at least 30 days in advance and will be performed once a year at most; (ii) if applicable, all of your personnel performing the audit, whether employed or contracted by you, will execute a PeerClick’s standard non-disclosure agreement prior to the initiation of the audit, and a third party auditor will in addition execute a non-competition undertaking; (iii) you will undertake all necessary measures to ensure and verify that the auditors do not access, disclose or compromise the confidentiality and security of Personal Data other than Your Personal Data on PeerClick’s information and network systems; (iv) you will take all necessary measures to prevent any damage or interference with PeerClick or its service providers’ information and network systems; (v) you will bear all costs and assume responsibility and liability for the audit and for any failures or damage caused as a result thereof; and (vi) any audit activities on PeerClikc’s third-party service providers’ information systems will be pre-scheduled and agreed on with the applicable providers; (vii) you will keep the audit results in strict confidentiality, use them solely for the specific purposes of the audit under this Section 6 and the GDPR will not use the results for any other purpose, or share them with any third party, without the PeerClick’s prior explicit written confirmation; (viii) If you are required to disclose the audit results to a competent authority, you will provide the PeerClick with a prior written notice, explaining the details and necessity of the disclosure, as well as provide all further necessary assistance to prevent such disclosure. SECURITY BREACH MANAGEMENT AND NOTIFICATION 7.1. If PeerClick becomes aware of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to any Personal Data transmitted, stored, or otherwise Processed on PeerClick’s equipment or in PeerClick’s facilities (“Security Breach”), PeerClick will promptly: (i) notify the Client of the Security Breach; (ii) investigate the Security Breach and provide Client with all relevant information about the Security Breach; and (iii) take all commercially reasonable steps to mitigate the effects and minimize any damage resulting from the Security Breach. SUBPROCESSING AND TRANSBORDER DATA TRANSFERS 8.1. Client authorizes PeerClick to appoint Sub-Processors in order to provide the Services. 8.2. PeerClick may continue to use the Sub-Processors already engaged by the PeerClick according to this DPA. 8.3. It is acknowledged and agreed by the Client that as of the date of this DPA, the PeerClick uses the following Sub-Processors for the purpose of providing its Services: Sub-Processors Services provided by Sub-Processors Transborder data processing legal basis Amazon Web Services Inc. Cloud hosting services Privacy Shield Framework Principles issued by the U.S. Department of Commerce, located at Freshworks Inc. Help desk services Privacy Shield Framework Principles issued by the U.S. Department of Commerce, located at Datadog Inc. Analytical services Privacy Shield Framework Principles issued by the U.S. Department of Commerce, located at Loggly Inc. Analytical services A subcontracting agreement based on the standard contractual clauses launched by virtue of the EU Commission Decision CoreOS Inc. IT Services Privacy Shield Framework Principles issued by the U.S. Department of Commerce, located at 8.4. PeerClick may appoint new Sub-Processors and shall give notice of the appointment of any new Sub-Processor (for instance, as a part of this Agreement amendment), whether by general or specific reference to such Sub-Processor (e.g., by name or type of service), including relevant details of the Processing to be undertaken by the new Sub-Processor. If within seven (7) days from such notice Client notifies Peerclick of any objections in writing (on reasonable grounds) to the proposed appointment, the PeerClick shall not appoint the proposed Sub-Processor for the processing of Client’s Personal Data until reasonable steps have been taken to address the objections raised by the Client and until the Client has been provided with a reasonable explanation of the steps undertaken. Where such steps are not sufficient to eliminate the Client’s reasonable objections, either the Client or PeerClick may, by notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which require the use of the proposed Sub-Processor without bearing liability for such termination. 8.5. PeerClick may integrate the Client’s services with external service providers’ platforms for the purpose of providing its Services, on Client’s behalf and for the purposes of serving the Client’s interests, where such external service providers may be Sub-Processors, which Client hereby agrees to. A full list of such Sub-Processors is available upon the Client’s written request directed to the PeerClick. 8.6. Notwithstanding the provisions above, you hereby authorize the PeerClick to subcontract the Processing to the Sub-Processors based outside of the European Economic Area (EEA) to the extent necessary to duly perform the Service(s), under the condition that the Sub-Processors will provide sufficient guarantees in relation to the required level of data protection, e.g. through a Privacy Shield certification according to the EU Commission Decision 2016/1250, or a subcontracting agreement based on the standard contractual clauses launched by virtue of the EU Commission Decision on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC or GDPR (the “Model Contract Clauses”), or based on other applicable transborder data transfer mechanisms. TERM AND RETENTION PERIOD 9.1. This DPA automatically supplements the agreement concluded by and between you and PeerClick under PeerClick Terms and Conditions when you create your PeerClick account. 9.2. Subject to the provision of section 9.3. below, Client authorizes PeerClick to retain Personal Data for a period of 741 days from the date of its collection on Client’s behalf and for the purpose of serving its interests, including for fraud prevention, ad security services, reporting services, complaints or chargebacks handling. This data may be deleted from the PeerClick’s servers after this retention period and/or after the termination of Agreement or earlier, at your written request. If Client instructs PeerClick to delete such data during the term of this Agreement such data will be no longer available to Client and can not be recovered by Client. 9.3. This Agreement shall continue in force until the termination of the agreement for Services concluded between you and PeerClick when you create your PeerClick account (the “Term”). In particular this Agreement is subject to termination upon deletion of your PeerClick account (the “Expiry of the Term”). On the Expiry of the Term, Clients hereby instructs PeerClick to delete all data subjects to this Agreement and processed by PeerClick on behalf of the Client, in particular End Users’ Data, from PeerClick systems (including existing copies of it), within 1 month after expiration. After a period up to 1 month following such expiry, all the data will be deleted and no longer available to Client, which the Client acknowledges and agrees to. Client has nevertheless the right to retrieve such data within the abovementioned 1 month period following the Expiry of Term. The retrieving of the data is carried out in a manner agreed on between PeerClick and Client and only upon Client’s request made no later than within the above mentioned maximum period of 1 month. Client acknowledges and agrees that PeerClick will not be responsible for storage, exporting or retrieving this data after the expiry of the period indicated above. NOTICES AND CONTACT TO DATA PROTECTION OFFICER 10.1. If you wish to make any inquiries about this Agreement, please contact our data protection officer at INDEMNIFICATION AND LIMITATION OF LIABILITY 11.1. Client shall indemnify and hold PeerClick, its officers, directors, employees, contractors, and agents harmless from and against all claims, liabilities, administrative fines, suits, judgments, actions, investigations, settlements, penalties, fines, damages and losses, demands, costs, expenses, and fees including reasonable attorneys’ fees and expenses, arising out of or in connection with any claims, demands, investigations, proceedings, or actions brought by data subjects, legal persons (e.g., corporations and organizations), or supervisory authorities under the data protection laws that apply to PeerClick in respect of processing of Personal Data on behalf of Client through Services. 11.2. The liability of each party under this Agreement shall be subject to the exclusions and limitations of liability set out in the Terms & Conditions. GOVERNING LAW 12.1. This Agreement shall be governed by, and is construed in accordance with, the laws of the State of Poland, without giving any effect to any choice of law and provisions thereof that would cause the application of the laws of any other jurisdiction.