Data Processing Agreement

Truvid Data Processing Agreement

This Data Protection Agreement is entered into by the Vendor acting on its own behalf and/or as agent for each Vendor Affiliate; and Truvid (“Company”) acting on its own behalf and as agent for each Company Affiliate.

The terms used in this Agreement shall have the meanings set forth in this Agreement. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Agreement to the Principal Agreement. Except where the context requires otherwise, references in this Agreement to the Principal Agreement are to the Principal Agreement as amended by, and including, this Agreement.

Introduction
The Parties have entered into an IO for the provision of Services. The Parties agree that there may be Personal Data shared between the Parties, including but not limited to, internet protocol addresses, precise location data and similar unique IDs such as cookie IDs and device IDs, in connection with the performance of each Party’s obligations under the IO described below. This Agreement only applies to the extent that EU Data Protection Law applies to the Processing of Personal Data under this Agreement, including if (a) the Processing is 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 by or on behalf of a Party. The Parties shall ensure that they will Process Personal Data solely for the purposes contemplated in the IO or as otherwise agreed to in writing by the Parties. For the avoidance of doubt, this Agreement and the obligations hereunder do not apply to aggregated reporting or depersonalized statistics a Party may provide to the other Party in connection with the provision of the Services hereunder.

1. Definitions
   In this Agreement, the following terms shall have the following meanings:
   1. "Applicable Data Protection Law" means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
   2. "Controller", "Processor", "Data Subject", "Personal Data", "Processing" (and "Process"), “Personal Data Breach” and "Special Categories of Personal Data" shall have the meanings given in EU Data Protection Law.
   3. "Applicable Data Protection Law" means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
   4. "Controller", "Processor", "Data Subject", "Personal Data", "Processing" (and "Process"), “Personal Data Breach” and "Special Categories of Personal Data" shall have the meanings given in EU Data Protection Law.
   5. "Controller to Controller Standard Clauses" in relation to the Processing of Personal Data pursuant to this Agreement means the standard clauses for the transfer of Personal Data to Controllers established in third countries approved by the European Commission from time to time, the approved version of which in force at present is that set out in the European Commission's Decision 2004/915/EC of 27 December 2004, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32004D0915. Schedule A to this Agreement shall apply as Annex B of the Controller to Controller Standard Clauses.
   6. "Controller to Processor Standard Clauses" in relation to the Processing of Personal Data pursuant to this Agreement means the standard clauses for the transfer of Personal Data to Processors established in third countries approved by the European Commission from time to time, the approved version of which in force at present is that set out in the European Commission's Decision 2010/87/EU of 5 February 2010, available at: http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087. Exhibit 2 to this Agreement shall apply as Appendix 1 of the Controller to Processor Standard Clauses.
   7. “Cross-App Advertising” as currently defined by the Network Advertising Initiative (“NAI”), means the collection of data through applications owned or operated by different entities on a particular device for the purpose of delivering advertising based on the preferences or interests known or inferred from the data collected, or as may be amended by the NAI from time to time.
   8. "EU Data Protection Law" means the (i) EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); (ii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended (e-Privacy Law); (iii) any national data protection laws made under, pursuant to, replacing or succeeding (i) and (ii); and (iv) any legislation replacing or updating any of the foregoing.
   9. "ID" means: (i) a unique identifier stored on an end-user’s device, (ii) a unique identifier generated on the basis of device information, or (iii) a resettable advertising ID associated with a mobile device or an application.
   10. "IO" means any agreement between Truvid and Company where a Party engages in or is permitted to engage in the Processing of Personal Data of Data Subjects.
   11. "Relevant Privacy Requirements" mean all (i) applicable advertising self-regulatory requirements, laws, governmental regulations and court or government agency orders, decrees and policies relating in any manner to the collection, use or dissemination of information from or about users, user traffic or otherwise relating to privacy rights or with respect to the sending of marketing and advertising communications; (ii) any written agreements Company or Truvid may have with non-governmental certification or self-regulatory bodies and that are made available in writing by one Party to the other; (iii) posted privacy policies; and (iv) for mobile applications, the terms of service for the applicable mobile operating system.
   12. "Security Incident" shall mean any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data of the other Party. For the avoidance of doubt, any Personal Data Breach of the other Party’s Personal Data will comprise a Security Incident.
   13. "Services" means services provided to the other Party pursuant to the terms of an IO.
   14. “Subprocessor” means any entity which provides processing services on behalf of a Processor.
2. The Exhibits and Annexes form part of this Agreement and a reference to an Exhibit or an Annex is, unless stated otherwise, a reference to an exhibit or annex to this Agreement.
3. In consideration of the mutual obligations set out herein, the Parties hereby agree that the terms and conditions set out below shall be added as an Agreement to the IO. Except where the context requires otherwise, references in this Agreement to the IO are to the IO as amended by, and including, this Agreement.

2. Obligations of the Parties
The Parties agree that they will each act as a Controller, Processor and/or Subprocessor.

a. Truvid is a Controller and the Company is a Processor, or
b. Truvid is acting as a Processor on behalf of a third-party Controller (not Company) and Company is a Subprocessor.

3. International transfers

3. 1. Where EU Data Protection Law applies, neither Party shall transfer or permit any Personal Data shared by the other Party to be transferred to a territory outside of the EEA unless it has taken such measures as are necessary to ensure the transfer is in compliance with EU Data Protection Law. Such measures may include (without limitation) transferring the Personal Data to a recipient in a country that the European Commission has decided provides adequate protection for Personal Data or to a recipient in the United States that has certified compliance with the EU-US Privacy Shield framework.
   2. Where each Party is a Controller, the following terms apply. Except with regards to Personal Data transferred from one Party to the other Party in reliance on the transferring Party’s Privacy Shield certification or other appropriate transfer mechanism specified in Section 3.1 above, the Controller to Controller Standard Clauses shall apply to the receiving party’s Processing of the Personal Data in countries outside the EEA that do not provide an adequate level of data protection. To the extent that the Parties transfer Personal Data in reliance on the Controller to Controller Standard Clauses, the Controller to Controller Standard Clauses shall be incorporated herein upon execution of this Agreement by the Parties. Where and to the extent that the Controller to Controller Standard Clauses apply pursuant to this Section 3, if there is any conflict between this Agreement and the Controller to Controller Standard Clauses the standard clauses shall prevail.
   3. Where a Party is the other Party’s Processor, the following terms apply. Unless the Processor transfers Personal Data pursuant to a transfer mechanism specified in Section 3.1 above, the Processor shall execute and abide by the Controller to Processor Standard Clauses which shall apply to Processing of Personal Data in countries outside the EEA that do not provide an adequate level of data protection. To the extent that the Parties transfer Personal Data in reliance on the Standard Clauses, the Standard Clauses shall be incorporated herein upon execution of this Agreement by the Parties. Where and to the extent that the Controller to Processor Standard Clauses apply pursuant to this Section 3, if there is any conflict between this Agreement and the Controller to Processor Standard Clauses the standard clauses shall prevail.

4. Security
Considering the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Vendor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk.
In assessing the appropriate level of security, Vendor shall take account of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Data Subject Rights
Considering the nature of the Processing, Vendor and each Vendor Affiliate shall assist each Company Group Member by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Company Group Members’ obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6. Vendor shall:
promptly notify Company if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Vendor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach
Vendor shall notify Company without undue delay upon Vendor or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow each Company Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Vendor shall co-operate with Company and each Company Group Member and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment and Prior Consultation
Vendor and each Vendor Affiliate shall provide reasonable assistance to each Company Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required of any Company Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9. Deletion or return of Company Personal Data
Subject to sections 10.2 and 10.3 Vendor and each Vendor Affiliate shall promptly delete and procure the deletion of all copies of those Company Personal Data.
Subject to section 10.3, Company may in its absolute discretion by written notice to Vendor and each Vendor Affiliate to (a) return a complete copy of all Company Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to Vendor; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor. Vendor and each Vendor Affiliate shall comply with any such written request instantly.
Each Contracted Processor may retain Company Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Vendor and each Vendor Affiliate shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
Vendor shall provide written certification to Company that it and each Vendor Affiliate has fully complied with this section 10.

10. Audit rights
Subject to sections [11.2 to 11.4], Vendor and each Vendor Affiliate shall make available to each Company Group Member on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by any Company Group Member or an auditor mandated by any Company Group Member in relation to the Processing of the Company Personal Data by the Contracted Processors.
Information and audit rights of the Company Group Members only arise under section 11.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
Company or the relevant Company Affiliate undertaking an audit shall give Vendor or the relevant Vendor Affiliate reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
to any individual unless he or she produces reasonable evidence of identity and authority;
outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company or the relevant Company Affiliate undertaking an audit has given notice to Vendor or the relevant Vendor Affiliate that this is the case before attendance outside those hours begins; or for the purposes of more than [one] audit or inspection, in respect of each Contracted Processor, in any [calendar year], except for any additional audits or inspections which:
Company or the relevant Company Affiliate undertaking an audit reasonably considers necessary because of genuine concerns as to Vendor’s or the relevant Vendor Affiliate’s compliance with this Agreement; or A Company Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Company or the relevant Company Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Vendor or the relevant Vendor Affiliate of the audit or inspection.]

11. Restricted Transfers
Subject to section 12.3, each Company Group Member (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Company Group Member to that Contracted Processor.
The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:
the data exporter becoming a party to them;
the data importer becoming a party to them; and
commencement of the relevant Restricted Transfer.
Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.

[Vendor warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor which is not a Vendor Affiliate, Vendor’s or the relevant Vendor Affiliate’s entry into the Standard Contractual Clauses under section 12.1, and agreement to variations to those Standard Contractual Clauses made under section 13.4.1, as agent for and on behalf of that Subprocessor will have been duly and effectively authorized (or subsequently ratified) by that Subprocessor.]

12. General Terms
Governing law and jurisdiction
Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
the parties to this Agreement hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Agreement, including disputes regarding its existence, validity or termination or the consequences of its nullity; and this Agreement and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.

13. Order of Precedence
Nothing in this Agreement reduces Vendor’s or any Vendor Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Vendor or any Vendor Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Agreement and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
Subject to section 13.2, with regard to the subject matter of this Agreement, in the event of inconsistencies between the provisions of this Agreement and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Agreement, the provisions of this Agreement shall prevail.
Changes in Data Protection Laws, etc.

14. Company may:
by at least [30 (thirty) calendar days’] written notice to Vendor from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; andpropose any other variations to this Agreement which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.

If Company gives notice under section 13.4.1:
[Vendor and each Vendor Affiliate shall promptly co-operate (and ensure that any affected Subprocessors promptly co-operate) to ensure that equivalent variations are made to any agreement put in place under section 6.4.3; and] Company shall not unreasonably withhold or delay agreement to any consequential variations to this Agreement proposed by Vendor to protect the Contracted Processors against additional risks associated with the variations made under section 13.4.1 [and/or 13.5.1].

If Company gives notice under section 13.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company’s notice as soon as is reasonably practicable.
Neither Company nor Vendor shall require the consent or approval of any Company Affiliate or Vendor Affiliate to amend this Agreement pursuant to this section 13.5 or otherwise.

15. Severance
Should any provision of this Agreement be invalid or unenforceable, then the remainder of this Agreement shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

IN WITNESS WHEREOF, this Agreement is entered into and becomes a binding part of the Principal Agreement with effect from the date first set out above.