Customer Data Processing Addendum
THE TERMS AND CONDITIONS IN THIS DATA PROCESSING ADDENDUM ("DPA"), ARE ENTERED INTO BETWEEN BLOOMREACH, B.V. ON BEHALF OF ITSELF AND ANY AFFILIATES THAT ARE PROVIDING SERVICES TO CUSTOMER ("BLOOMREACH"); AND YOU (“YOU”, “YOUR” OR "CUSTOMER"), PURSUANT TO THE TERMS OF THE AGREEMENT (DEFINED BELOW). ALL CAPITALIZED TERMS NOT DEFINED IN THIS DPA SHALL HAVE THE MEANINGS SET FORTH IN THE AGREEMENT.
THIS DPA TOGETHER WITH THE AGREEMENT, CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR USE OF THE BLOOMREACH SERVICES. CUSTOMER AGREES THAT THIS DPA IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND AGREES TO ENTER INTO THIS DPA ON BEHALF OF ITSELF AND, TO THE EXTENT REQUIRED UNDER APPLICABLE DATA PROTECTION LAWS, IN THE NAME AND ON BEHALF OF ITS CONTROLLER AFFILIATES (DEFINED BELOW). FOR THE PURPOSES OF THIS DPA ONLY, AND EXCEPT WHERE INDICATED OTHERWISE, THE TERM “CUSTOMER” SHALL INCLUDE CUSTOMER AND CONTROLLER AFFILIATES. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS DPA, CUSTOMER MAY NOT USE SERVICES. ALL CAPITALIZED TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH IN THE AGREEMENT.
A. BloomReach and Customer have entered into a master subscription agreement, together with one or more connected Sales Orders, contracts and/or agreements (collectively the "Agreement"), pursuant to which BloomReach has agreed to provide the Services.
B. The parties wish to define their respective data protection obligations relating to the BloomReach's provision of Services to Customer.
The parties agree as follows:
"Affiliate" means any entity under the control of a party where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
"Controller" means an entity that determines the purposes and means of the processing of Personal Data.
“Customer Data” means any and all Personal Data that BloomReach processes as a Processor on behalf of the Customer in course of providing the Services under the Agreement.
"Controller Affiliates" means any of Customer's Affiliate(s) (a) (i) that are subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (ii) permitted to use the Services pursuant to the Agreement between Customer and BloomReach, but have not signed their own Sales Order and are not a “Customer” as defined under the Agreement, (b) if and to the extent BloomReach processes Customer Data for which such Affiliate(s) qualify as the Controller.
"Data Protection Laws" means all data protection and privacy laws and regulations applicable to the processing of Customer Data under the Agreement, including, where applicable, EU Data Protection Law.
"EU Data Protection Law" means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data ("Directive") and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) ("GDPR"); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).
"Group" means any and all Affiliates that are part of an entity's corporate group.
"Personal Data" means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Law.
"Processor" means an entity that processes Personal Data on behalf of the Controller.
"Processing" has the meaning given to it in the GDPR and "process", "processes" and "processed" shall be interpreted accordingly.
"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
"Services" means any product or service provided by BloomReach to Customer pursuant to and as more particularly described in the Agreement.
"Sub-processor" means any Processor engaged by BloomReach or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or members of the BloomReach Group.
2. Scope and Applicability of this DPA
2.1 Scope. This DPA applies where and only to the extent that BloomReach processes Customer Data as a Processor on behalf of the Customer in the course of providing the Services and such Customer Data is subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom.
2.2 Role of the Parties. As between BloomReach and Customer, Customer is the Controller of Customer Data, and BloomReach shall process Customer Data only as a Processor on behalf of Customer. Nothing in the Agreement or this DPA shall prevent BloomReach from using or sharing any data that BloomReach would otherwise collect and process independently of Customer's use of the Services.
2.3 Customer Obligations
(a) Customer's Processing of Customer Data: Customer agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to BloomReach; and (ii) it has provided notice and obtained (or shall obtain) all consents (where required) and rights necessary under Data Protection Laws for BloomReach to process Customer Data and provide the Services pursuant to the Agreement and this DPA.
2.4 BloomReach Processing of Customer Data. As a Processor, BloomReach shall process Customer Data only for the following purposes: (i) processing to provide the Services in accordance with the Agreement and applicable Sales Order(s); (ii) processing to perform any steps necessary for the performance of the Agreement; (iii) processing initiated by Permitted Users in their use of the Services; and (iv) processing to comply with other reasonable instructions provided by Customer (e.g. via email or support tickets) that are consistent with the terms of this Agreement (individually and collectively, the "Purpose") and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to BloomReach in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and BloomReach.
2.5 Details of Data Processing. The subject matter of the processing of Customer Data by BloomReach is the Purpose. Unless otherwise specified in the applicable Sales Order, the duration of processing, the nature and purpose of the processing, the types of Customer Data and the categories of data subjects processed under this DPA are further specified in Annex A (Description of the Processing Activities) to this DPA.
2.6 BloomReach Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that BloomReach shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered Personal Data under Data Protection Laws, BloomReach is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.
3.1 Authorized Sub-processors. Customer agrees that BloomReach may engage Sub-processors to process Customer Data on Customer's behalf. The Sub-processors currently engaged by BloomReach and authorized by Customer are listed here https://www.bloomreach.com/en/about/subprocessors.
3.2 Sub-processor Obligations. BloomReach shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Customer Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause BloomReach to breach any of its obligations under this DPA.
3.3 Changes to Sub-processors. BloomReach shall notify Customer if it adds or removes Sub-processors at least 10 days prior to any such changes.
3.4 Objection to Sub-processors. Customer may object in writing to BloomReach’s appointment of a new Sub-processor on reasonable grounds relating to data protection (e.g. if making Customer Data available to the Sub-processor may violate applicable Data Protection Law or weaken the protections for such Customer Data) by notifying BloomReach promptly in writing within five (5) calendar days of receipt of BloomReach's notice in accordance with Section 3.3. Such notice shall explain the reasonable grounds for the objection. In such event, the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution.
4.1 Security Measures. BloomReach shall implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data. Such measures shall, at a minimum, include the measures identified in Annex B ("Security Measures").
4.2 Confidentiality of processing. BloomReach shall ensure that any person who is authorized by BloomReach to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.3 Security Incident Response. Upon becoming aware of a Security Incident, BloomReach shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
4.4 Updates to Security Measures. Customer acknowledges that the Security Measures are subject to technical progress and development and that BloomReach may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
4.5 Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
5. Security Reports and Audits
5.1 BloomReach shall provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires, that Customer (acting reasonably) considers necessary to confirm BloomReach's compliance with this DPA, provided that Customer shall not exercise this right more than once per year.
6. International Transfers
6.1 Processing Locations. BloomReach may transfer and process Customer Data to and in the United States and anywhere else in the world where BloomReach, its Affiliates or its Sub-processors maintain data processing operations. BloomReach shall at all times ensure appropriate safeguards to protect the Customer Data processed, in accordance with the requirements of Data Protection Laws.
6.2 EU Data Transfers. BloomReach shall not transfer Customer Data that is subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom (for the purposes of this DPA, the "EU") in or to any country or recipient not recognized as providing an adequate level of protection for Personal Data (as described in applicable Data Protection Law), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient in a country that the European Commission has decided provides adequate protection for Personal Data (as described in EU Data Protection Law), to a recipient that is self-certified to the Privacy Shield, to a recipient that has achieved binding corporate rules authorization in accordance with applicable Data Protection Law, or to a recipient that has executed appropriate standard contractual clauses adopted or approved by the European Commission.
7. Return or Deletion of Data
7.1 Upon termination or expiration of the Agreement, BloomReach shall (at Customer's election) delete or return to Customer all Customer Data (including copies) in its possession or control, save that this requirement shall not apply to the extent BloomReach is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data BloomReach shall securely isolate and protect from any further processing, except to the extent required by applicable law.
8. Rights of Data Subjects and Cooperation
8.1 Data Subject Request. To the extent that Customer is unable to independently access the relevant Customer Data within the Services, BloomReach shall (at Customer's expense) taking into account the nature of the processing, provide reasonable cooperation to assist Customer by appropriate technical and organisational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Customer Data under the Agreement. In the event that any such request is made directly to BloomReach, BloomReach shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If BloomReach is required to respond to such a request, BloomReach shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
8.2 Subpoenas and Court Orders. If a law enforcement agency sends BloomReach a demand for Customer Data (for example, through a subpoena or court order), BloomReach shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless BloomReach is legally prohibited from doing so.
8.3 Data Protection Impact Assessment. To the extent BloomReach is required under EU Data Protection Law, BloomReach shall (at Customer's expense) provide reasonably requested information regarding BloomReach's processing of Customer Data under the Agreement to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
9. Controller Affiliates
9.1 Contractual Relationship. The parties acknowledge and agree that, by executing the DPA, Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Controller Affiliates, thereby establishing a separate DPA between BloomReach and each such Controller Affiliate subject to the provisions of the Agreement and this Section 9 and Section 10. Each Controller Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, a Controller Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services by Controller Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by a Controller Affiliate shall be deemed a violation by Customer.
9.2 Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with BloomReach under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Controller Affiliates.
9.3 Rights of Controller Affiliates. If a Controller Affiliate becomes a party to the DPA with BloomReach, it shall, to the extent required under applicable Data Protection Laws, also be entitled to exercise the rights and seek remedies under this DPA, provided that except where applicable Data Protection Laws require the Controller Affiliate to exercise a right or seek any remedy under this DPA against BloomReach directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Controller Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Controller Affiliate individually but in a combined manner for all of its Controller Affiliates together.
10. Limitation of Liability
10.1 Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Controller Affiliates and BloomReach, whether in contract, tort or under any other theory of liability, is subject to the limitations and exclusions of liability in the Agreement, and any reference in provisions to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.
10.2 For the avoidance of doubt, BloomReach and its Affiliates’ total liability for all claims from the Customer and all of its Controller Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under the Agreement, including by Customer and all Controller Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Controller Affiliate that is a contractual party to any such DPA.
11.1 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
11.2 With effect from the effective date of this DPA, this DPA shall be deemed a part of and incorporated into the Agreement so that references in the Agreement to "Agreement" shall be interpreted to include this DPA.
11.3 In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.
11.4 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
Annex A Details of Processing
(a) Duration. The duration of the processing under this DPA is determined by the Agreement.
(b) Categories of data subjects. The data subjects of Customer which may include:
(i) Permitted Users – any employees, contractors, suppliers and other third parties who are authorized under the Agreement to use the Services.
(ii) Visitor -any visitor to a Site covered by the Services.
(c) Categories of data.:
(i) Permitted Users: identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility); IT related data (computer ID, user ID, password, IP address, log files).
(ii) Visitors: browsing and purchasing activity (including pages and/or products purchases, links clicked, searched performed, product category and order details). IP addresses, unique device level identifiers (such as an IDFA or Android Advertising ID), cookies data, online navigation data (including access date and times), location data, browser data language and any other Personal Data Customer configures the Services to collect.
(d) Special categories of data (if appropriate). The Supplier and/or its Sub-processors contractors do not intentionally collect or process any special categories of data in connection with the provision of the Services under the Agreements.
(e) Purposes of Processing: For the Purposes (as defined in this DPA).
(f) Processing operations: The Customer Data transferred will be processed in accordance with the Agreement and any Sales Order and may be subject to the following processing activities:
(i) storage and other processing necessary to provide, maintain and improve the Services provided to Customer
(ii) to provide customer and technical support to the Customer; and
(iii) disclosures in accordance with the Agreement, as compelled by law.
Annex B – Security Measures
BloomReach will implement technical and administrative safeguards to protect Customer Data against Security Incidents, including by taking the following security measures:
- Information security policy: BloomReach will implement a written information security policy that specifies the security standards it will apply to protect the Personal Data it processes in accordance with the Agreement. The information security policy will mandate the use of appropriate technical and organisational security measures in BloomReach's organisation to protect Personal Data against unauthorised and unlawful processing and against accidental loss, damage or destruction. It will further describe the measures to be taken in the event of an actual or suspected data or security breach.
- Security Function: BloomReach shall designate a security committee tasked with responsibility for the development, implementation, and maintenance of the BloomReach Information Security Program.
- Physical security: Access to data processing facilities will be restricted to duly authorised employees and contractors by use of keys, fingerprint readers, or other electronic security measures.
- Firewall and anti-virus: BloomReach will implement appropriate firewall, anti-virus, anti-spyware and other anti-malware software and technologies on all networks and systems it uses to process Personal Data. BloomReach will update its firewall, anti-virus, anti-spyware and other anti-malware software and technologies on a regular basis to ensure that they protect against then-current virus, spyware and other malware threats.
- Access controls: BloomReach will implement technical access controls that restrict access to Personal Data it processes to duly authorised employees and contractors only. Duly authorised employees and contractors will be permitted to access Personal Data only to the extent necessary for the performance of their duties. BloomReach will identify and appoint a system administrator with overall responsibility for granting, changing or voiding data access privileges to its data processing systems.
- Usernames / passwords: Access to Personal Data will be controlled through access privileges (described above), usernames and confidential passwords. No two employees or contractors may share or use the same username. Employees and contractors will be required to change their passwords on a regular basis and at least once every six months. All employee passwords must be at least eight characters, including a minimum of one uppercase letter and one numeral.
- Back-up: BloomReach will take regular, at least weekly, back-ups of the Personal Data that it processes on behalf of the data exporter. Data back-ups will be stored securely at an offsite location and will be available for data restoration within a 24 hour time period.
- Disaster recovery / business continuity: BloomReach will implement appropriate disaster recovery and business continuity plans that will ensure the availability, security, integrity and (where necessary) restoration of the Personal Data on the occurrence of a force majeure or similar business interruption event. BloomReach will provide a copy of its disaster recovery and business continuity plans to the data exporter upon request.
- Power loss: BloomReach's data processing systems will protect against loss, destruction or damage of Personal Data due to failure or interference of any power supply.
- Audit: BloomReach will audit its compliance with the Agreement and its information security policy on a regular basis and at least once per annum. Any remedial measures identified as necessary following an audit will be fully and promptly implemented.
- Secure Disposal: BloomReach will implement policies and procedures regarding the disposal of Personal Data, and tangible property containing Personal Data, taking into account available technology so that Personal Data cannot be practicably read or reconstructed.