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Customer Data Processing Addendum

 

The terms and conditions in this Data Processing Addendum ("DPA"), are entered into between BloomReach, INC. 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.

RECITALS

A.      BloomReach and Customer have entered into a master subscription agreement, together with one or more connected statements of work, purchase 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:

  1. Definitions

"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.

"Standard Contractual Clauses" means the standard contractual clauses for Processors as approved by the European Commission in the form set out in Annex C.

"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. 

  1. 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.

(b)    Use of Cookies and Tracking Technology. Where the Services employ the use of cookies and/or similar tracking technologies ("Cookies"), Customer shall (and shall procure that any Controller Affiliate) shall maintain appropriate notice and consent mechanisms as required by Data Protection Laws (or a reasonably requested by BloomReach) and industry best practice to enable BloomReach to deploy Cookies lawfully on, and collect data from, the devices of Visitors for the purposes of providing the Services. BloomReach shall provide Customer with as all information reasonably required by the Customer (including details about the Cookies) to enable Customer and, where applicable, its Controller Affiliates to provide such notice. Customer shall promptly notify BloomReach if it is unable to comply with its obligations under this Section 2.3(b).

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.   Subprocessing

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 0. 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.   Security 

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   Standard Contractual Clauses. If and to the extent BloomReach processes or transfers (directly or via onward 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), the parties agree that BloomReach shall be deemed to deemed to provide appropriate safeguards (within the meaning of Data Protection Law) for any such Customer Data by complying with the Standard Contractual Clauses. For the purposes of the Standard Contractual Clauses, BloomReach agrees that it is a "data importer" and Customer is the "data exporter" (notwithstanding that Customer may be an entity located outside of the EU).

6.3   Alternative Transfer Mechanism. The parties agree that the data export solution identified in this Section 6 shall not apply if and to the extent that BloomReach adopts an alternative data export solution for the lawful transfer of Customer Data (as recognized under applicable Data Protection Law) outside of the EU(“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which Customer Data is transferred).  
 

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 (including the Standard Contractual Clauses), 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.   Miscellaneous

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

  1. Duration. The duration of the processing under this DPA is determined by the Agreement.
  2. Categories of data subjects. The data subjects of Customer which may include:
    1. Permitted Users – any employees, contractors, suppliers and other third parties who are authorized under the Agreement to use       the Services.
    2. Visitor -any visitor to a Site covered by the Services.
  3. Categories of data:
    1. 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).
    2. 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.
  4. 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. 
  5. Purposes of Processing: For the Purposes (as defined in this DPA).
  6. 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:
    1. storage and other processing necessary to provide, maintain and improve the Services provided to Customer
    2. to provide customer and technical support to the Customer; and
    3. 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:

 

  1. 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. 

 

  1. Security Function: BloomReach shall designate a security committee tasked with responsibility for the development, implementation, and maintenance of the BloomReach Information Security Program. 
  2. 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. 
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.

 

Annex C

Standard Contractual Clauses (processors)


THE PARTIES HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

  1. Definitions

For the purposes of the Clauses:

  1. 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  2. 'the data exporter' means the controller who transfers the personal data;
  3. 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  4. 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  6. 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
  1. Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

  1. Third-party beneficiary clause
    1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
    2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
    3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
    4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
  2. Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).
  1. Obligations of the data importer

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
    2. any accidental or unauthorised access, and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  6. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
  1. Liability
    1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
    2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
    3. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
    4. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  2. Mediation and jurisdiction
    1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
      1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
      2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  3. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
  4. Cooperation with supervisory authorities
    1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
    2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
    3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
  5. Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

  1. Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

  1. Subprocessing
    1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
    2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
    3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
    4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
  2. Obligation after the termination of personal data processing services
    1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
    2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

 

Appendix 1 to the Standard Contractual Clauses

This Appendix forms part of the Clauses.

Data exporterThe data exporter is the entity identified as the "Customer" in the Data Processing Addendum in place between data exporter and data importer and to which these Clauses are appended ("DPA").

Data importer: The data importer is the BloomReach Inc. acting on behalf of itself and its Affiliates to the extent they receive and process Customer Data  (as defined in the DPA) ("BloomReach").

Description of Data Processing: Please see Annex A of the DPA for a description of the data subjects, categories of data, special categories of data and processing operations.

 

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

 

Please see Annex B of the DPA, which describes the technical and organisational security measures implemented by BloomReach.

 

Appendix 3 to the Standard Contractual Clauses

This Appendix forms part of the Clauses.

This Appendix sets out the parties' interpretation of their respective obligations under specific Clauses identified below.  Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses. 

Clause 4(h) and 8: Disclosure of these Clauses 

  1. Data exporter agrees that these Clauses constitute data importer's Confidential Information as that term is defined in the Agreement and may not be disclosed by data exporter to any third party without data importer's prior written consent unless permitted pursuant to Agreement.  This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8.

Clause 5(a): Suspension of data transfers and termination:

  1. The parties acknowledge that data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses.
  2. The parties acknowledge that if data importer cannot provide such compliance for whatever reason, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract.
  3. If the data exporter intends to suspend the transfer of personal data and/or terminate these Clauses, it shall endeavour to provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”). 
  4. If after the Cure Period the data importer has not or cannot cure the non-compliance then the data exporter may suspend or terminate the transfer of personal data immediately.  The data exporter shall not be required to provide such notice in instance where it considers there is a material risk of harm to data subjects or their personal data.

Clause 5(f): Audit:

  1. Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in Section 5 (Security Reports and Audits) of the DPA. 

Clause 5(j): Disclosure of subprocessor agreements

  1. The parties acknowledge the obligation of the data importer to send promptly a copy of any onward subprocessor agreement it concludes under the Clauses to the data exporter.
  2. The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter.  Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.
  3. Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably in connection with such subprocessing agreement to data exporter.

Clause 6: Liability

1.  Any claims brought under the Clauses shall be subject to the terms and conditions, including but to limited to, the exclusions and limitations set forth in the Agreement.  In no event shall any party limit its liability with respect to any data subject rights under these Clauses.

Clause 11:  Onward subprocessing

  1. The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled "FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC" the data exporter may provide a general consent to onward subprocessing by the data importer.
  2. Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors. Such consent is conditional on data importer’s compliance with the requirements set out in Section 3 (Sub-processing) of the DPA.