Snapshot 51305
Normalized text
Scripts and page chrome removed; this is what change detection compares.
DATA PROCESSING ADDENDUM
This Data Processing Addendum ("DPA") forms part of the software as a service agreement
found at www.giftsenda.com/terms or other superseding written agreement between
("Customer") and Giftsenda LLC ("Giftsenda") that governs the Customers use of the
Services ("Services Agreement"), under which Giftsenda will process certain Personal Data
in the course of providing Services to Customer. The parties intend this DPA to be an
extension of the Services Agreement that will outline certain requirements for the
processing of such Personal Data.
This DPA (including the Standard Contractual Clauses) is effective as of the date signed by
the Customer, but only if Giftsenda receives the signed DPA in accordance with the
instructions below.
This DPA has been pre-signed by Giftsenda. In order for DPA to be effective, Customer must
first:
1. Complete and sign the information block below with the Customer's full legal entity
name, address and signatory information; and
2. Submit the completed and signed DPA to Giftsenda via email to legal@giftsenda.com.
If Customer makes any deletions or revisions to this DPA, those deletions or revisions are
hereby rejected and invalid, unless agreed by Giftsenda. Customer's signatory represents
and warrants that they have the authority to bind the Customer to this DPA. This DPA will
terminate automatically upon termination of the Agreement, or as earlier terminated
pursuant to the terms of this DPA.
1. Definitions
"Affiliate" means any entity that is directly or indirectly controlled by, controlling or under
common control with a party.
"Data Protection Legislation" means the data protection and privacy laws of Europe
applicable to a party and its processing of Personal Data under this DPA, including where
applicable: (i) General Data Protection Regulation (Regulation 2016/679) ("GDPR"); (ii) the
GDPR as saved into UK law by virtue of section 3 of the UK's European Union (Withdrawal)
Act 2018 ("UK GDPR") and the UK Data Protection Act 2018 (collectively referred to for
these purposes as the "UK Data Protection Law"); (iii) the Swiss Federal Data Protection Act
of 19 June 1992 and its corresponding ordinances ("Swiss DPA"); (iv) the e-Privacy Directive
(Directive 2002/58/EC); (v) any applicable national data protection laws made under or
pursuant to or that apply in conjunction with (i), (ii), (iii) and or (iv) (in each case, as
superseded, amended or replaced from time to time).
"Europe" means, for the purposes of this DPA, the member states of the European Economic
Area ("EEA"), Switzerland and the United Kingdom ("UK").
"Personal Data" means any data that is personal data, personally identifiable information
or personal information processed on behalf of Customer in the course of providing the
Services, as more particularly described in Annex I (Description of Processing) to Schedule I
of this DPA.
"data controller", "data processor", "subprocessor", "data subject", "personal data",
"processing", and "appropriate technical and organizational measures" shall be
interpreted in accordance with the GDPR, or other applicable Data Protection Legislation, in
the relevant jurisdiction.
"Restricted Transfer" means: (i) where the GDPR applies, a transfer of personal data from
the EEA to a country outside of the EEA which is not subject to an adequacy determination
by the European Commission; (ii) where the UK GDPR applies, a transfer of personal data
from the UK to any other country which is not based on adequacy regulations pursuant to
Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a
transfer of personal data to a country outside of Switzerland which is not included on the
list of adequate jurisdictions published by the Swiss Federal Data Protection and
Information Commissioner.
"Security Breach" means a breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorized disclosure of, or access to, personal data
transmitted, stored or otherwise processed by Giftsenda under this DPA. "Security Breach"
shall not include unsuccessful attempts or activities that do not compromise the security of
personal data, including unsuccessful log-in attempts, pings, port scans, denial of service
attacks, and other network attacks on firewalls or networked systems.
"Services" means the services provided by Giftsenda to Customer under the Services
Agreement.
"Standard Contractual Clauses" or "SCCs" means: (i) the standard contractual clauses
annexed to the European Commission's Implementing Decision 2021/914 of 4 June 2021 on
standard contractual clauses for the transfer of personal data to third countries pursuant to
Regulation (EU) 2016/679 of the European Parliament and of the Council, incorporated into
this DPA as Schedule I in accordance with Section 3(g) (Data Transfers) of this DPA ("EU
SCCs"); and (ii) where the UK GDPR applies in accordance with Section 3(g) (Data
Transfers) of this DPA, the applicable standard data protection clauses for processors
adopted pursuant to Article 46(2)(c) or (d) of the UK GDPR ("UK SCCs").
"Subprocessor" means any third party that has access to the personal data and which is
engaged by Giftsenda to assist in fulfilling its obligations to provide the Services.
Subprocessors may include Giftsenda Affiliates but shall exclude any Giftsenda employee,
contractor or consultant.
2. Scope
The parties agree that, as between the parties, Customer is a data controller and that
Giftsenda is a processor in relation to Personal Data that Giftsenda processes on behalf of
Customer in the course of providing the Services, as more particularly described in Annex I
(Description of Processing) to Schedule I of this DPA. The subject-matter of the data
processing, the types of personal data processed, and the categories of data subjects will be
defined by, and/or limited to that necessary to carry out the Services described in, the
Services Agreement. The processing will be carried out until the date Giftsenda ceases to
provide the Services to Customer.
3. Data Protection
Giftsenda shall adhere to the following requirements:
a. Processing Instructions:
Giftsenda will process the Personal Data (i) in accordance with the Customer's lawful
documented instructions and in compliance with Data Protection Legislation. For these
purposes, the Customer instructs Giftsenda to process Personal Data for the purposes
described in Annex I (Description of Processing) to Schedule I of this DPA. The nature and
purposes of the processing shall be limited that that necessary to carry out such
instructions, and not for Giftsenda's own purposes, or for any other purposes except as
required by law. If Giftsenda is required by law to process the Personal Data for any other
purpose, Giftsenda will inform Customer of such requirement prior to the processing, unless
prohibited by law from doing so. The parties agree that the Services Agreement (including
this DPA), and Customer's use of the Services in accordance with the Services Agreement,
set out Customer's complete and final processing instructions. Customer shall ensure its
instructions are lawful and that the processing of the Personal Data in accordance with such
instructions will not violate Data Protection Legislation.
b. Security Measures
Giftsenda will implement and maintain appropriate technical and organizational measures
designed to protect the Personal Data against Security Breaches disclosure and to preserve
the security and confidentiality of Personal Data. Such measures shall include, at a
minimum, those measures described in Annex II to Schedule I of this DPA ("Security
Measures"). Customer acknowledges that the Security Measures are subject to technical
progress and development and that Giftsenda may update or modify the Security Measures
from time to time, provided that such updates and modifications do not degrade or diminish
the overall security of the Services.
c. Subprocessors
Giftsenda may engage Subprocessors to process the Personal Data on Customer's behalf and
Customer hereby provides Giftsenda a general written authorization to engage
Subprocessors in order to provide the Services, including the Subprocessors listed in
Schedule II of this DPA. Giftsenda will not engage any new Subprocessors without giving
Customer prior notice and an opportunity to object in good faith on reasonable grounds
relating to data protection, which, if not exercised within 30 days of receipt of such notice
shall be deemed to constitute an approval of such engagement. Giftsenda must ensure the
reliability and competence of such third party, its employees or agents who may have access
to the Personal Data processed in the provision of the Services, and will impose
substantially the same data protection terms on an Subprocessor it engages as contained in
this DPA and as are required by applicable Data Protection Legislation. For the avoidance of
doubt, where a third party fails to fulfil its obligations under any sub-processing agreement
or any applicable Data Protection Legislation, Giftsenda will remain fully liable to Customer
for the fulfillment of its obligations under this DPA and the Services Agreement.
d. Personnel:
Giftsenda will take reasonable steps to ensure the reliability and competence of any
Giftsenda personnel who have access to the Personal Data. Giftsenda will ensure that all
Giftsenda personnel required to access the Personal Data are informed of the confidential
nature of the Personal Data and comply with the obligations set out in this DPA.
e. Co-operation:
Giftsenda will take all reasonable steps to assist Customer in meeting Customer's obligations
under applicable Data Protection Legislation, including Customer's obligations to respond to
requests by data subjects to exercise their rights with respect to Personal Data (to the extent
that Customer is unable to independently access, delete or retrieve the relevant personal
data within the Services), adhere to data security obligations, respond to data breaches and
other incidents involving Personal Data, conduct data protection impact assessments, and
consult with supervisory authorities. Giftsenda will promptly inform Customer in writing if
it receives: (i) a request from a data subject concerning any Personal Data; or (ii) a
complaint, communication, or request relating to Customer's obligations under Data
Protection Legislation.
f. Deletion:
Giftsenda will not retain any of the Personal Data for longer than is necessary to provide the
Services. At the end of the Services, or upon Customer's request, Giftsenda will securely
destroy or return (at Customer's election) the Personal Data to Customer. This requirement
shall not apply to the extent Giftsenda is required by applicable law to retain some or all of
the Personal Data, or to Personal Data archived on back-up systems, which data Giftsenda
shall securely isolate and protect from any further processing (to the extent permitted by
applicable law). The parties agree that the certification of deletion of Personal Data
described in Clause 8.5 and 16.(d) of EU SCCs shall be provided by Giftsenda to Customer
only upon Customer's written request.
g. Data Transfers:
Where the processing of Personal Data involves the transfer of Personal Data from Customer
to Giftsenda and such transfer is a Restricted Transfer and Data Protection Legislation
requires that appropriate safeguards are put in place, such transfer shall be subject to the
appropriate Standard Contractual Clauses, as follows:
3. 1. The Restricted Transfer shall be governed by the EU SCCs, which the parties hereby
enter into and incorporate into this DPA as Schedule 1 apply;
4. 2. To extent that and for so long as the EU SCCs as implemented in accordance with
Schedule I of this DPA and its annexes cannot be relied on to lawfully transfer Personal
Data in compliance with UK Data Protection Law, the UK SCCs shall be incorporated by
reference and deemed completed with the relevant information set out in the annexes of
this DPA; and
5. 3. It is not the intention of either party to contradict or restrict any of the provisions set
forth in the SCCs and, accordingly, if and to the extent the SCCs conflict with any
provision of the Services Agreement (including this DPA), the SCCs shall prevail to the
extent of such conflict.
6. 4. The terms of the SCCs shall not apply where and to the extent that Giftsenda adopts an
alternative data export mechanism that is recognized by the relevant authorities or
courts as providing an adequate level of protection or appropriate safeguards for
Personal Data ("Alternative Transfer Mechanism"). The Alternative Transfer Mechanism
shall upon notice to Customer apply instead of any applicable transfer mechanism
described in this DPA (but only to the extent such Alternative Transfer Mechanism
complies with Data Protection Legislation applicable to Europe and extends to
territories to which Personal Data is transferred. In addition, if and to the extent that a
court of competent jurisdiction or supervisory authority orders (for whatever reason)
that the measures described in this DPA cannot be relied on to lawfully transfer the
Personal Data (within the meaning of applicable Data Protection Legislation), Giftsenda
may implement any additional measures or safeguards that may be reasonably required
to enable the lawful transfer of the Personal Data.
h. Audit:
Giftsenda shall provide written responses to all reasonable requests made by Customer for
information relating to Giftsenda's processing of Personal Data, including responses to
information and security audit questionnaires submitted to it by Customer and that are
necessary to confirm Giftsenda's compliance with this DPA, provided that Customer shall
not exercise this right more than once per calendar year or when Customer is expressly
requested or required to provide this information to a data protection authority. While it is
the parties' intention to ordinarily rely on the written responses described above to verify
Giftsenda's compliance with this DPA and Data Protection Legislation, following a confirmed
Security Breach or where a data protection authority requires it, Customer may, no more
than once a year, provide Giftsenda with thirty (30) days' prior written notice requesting
that a third-party conduct an audit of Giftsenda's facilities, equipment, documents and
electronic data relating to the processing of Personal Data under the Services Agreement
("Audit"), provided that: (a) the Audit shall be conducted at Customer's expense; (b) the
parties shall mutually agree upon the scope, timing and duration of the Audit; and (c) the
Audit shall not unreasonably impact Giftsenda's regular operations. Customer acknowledges
that any written responses or Audit shall be subject to the confidentiality provisions of the
Services Agreement.
i. Security Breach Notification:
If Giftsenda becomes aware of a Security Breach,
1. it shall without undue delay (and where feasible within 1 business day) notify
Customer and provide Customer with: a detailed description of the Security Breach;
the type of data that was the subject of the Security Breach; the identity of each
affected person, and the steps Giftsenda takes in order to mitigate and remediate
such Security Breach, in each case as soon as such information can be collected or
otherwise becomes available (as well as periodic updates to this information and
any other information Customer may reasonably request relating to the Security
Breach); and take reasonable steps to contain, investigate and mitigate the effects of
the Security Breach and, with the prior written approval of Customer, carry out any
recovery or other action necessary to remedy the Security Breach.
2. Giftsenda will notify Customer immediately if, in Giftsenda's reasonable opinion, an
instruction for the processing of personal data given by Customer infringes
applicable Data Protection Legislation.
4. Customer Responsibilities
Customer is responsible for determining whether the Services are appropriate for the
storage and processing of Personal Data under Data Protection Legislation. Customer
further agrees that: (a) it will comply with its obligations under Data Protection Legislation
regarding its use of the Services and the processing of Personal Data; (b) it has provided
notice and obtained all consents, permissions and rights necessary for Giftsenda and its
Subprocessors to lawfully process Personal Data for the purposes contemplated by the
Services Agreement (including this DPA); and (c) it will notify Giftsenda if it is unable to
comply with its obligations under Data Protection Legislation or its processing instructions
will cause Giftsenda or its Subprocessors to be in breach of Data Protection Legislation.
5. Limitation of liability
Any claim or remedy Customer or its Affiliates may have against Giftsenda, its employees,
agents and Subprocessors, arising under or in connection with this DPA (including the
Standard Contractual Clauses), whether in contract, tort (including negligence) or under any
other theory of liability, shall to the maximum extent permitted by law be subject to the
limitations and exclusions of liability in the Services Agreement. Accordingly, any reference
in the Services Agreement to the liability of a party means the aggregate liability of that
party and all of its Affiliates under and in connection with the Services Agreement and this
DPA together.
6. Permitted Disclosures
Each party acknowledges that the other party may disclose the Standard Contractual
Clauses, this DPA and any privacy related provisions in the Services Agreement to any
European or US regulator upon request.
7. Governing Law and Jurisdiction
This DPA shall be governed by and construed in accordance with the governing law and
jurisdiction provisions in the Services Agreement, unless required otherwise by Data
Protection Legislation or the Standard Contractual Clauses.
IN WITNESS WHEREOF, the parties hereto have executed this DPA as of the date first above
written.
GIFTSENDA LLC Customer
By: ________________________ By: ________________________
Name: ____________________ Name: ____________________
Title: _______________________ Title: _______________________
Company: _________________
Address: _________________
SCHEDULE I
STANDARD CONTRACTUAL CLAUSES
2021 Controller-to-Processor Clauses (Module Two)
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the
requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council
of 27 April 2016 on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data (General Data Protection Regulation)
for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies
(hereinafter "entity/ies") transferring the personal data, as listed in Annex I.A. (hereinafter
each "data exporter"), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter,
directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A.
(hereinafter each "data importer")
have agreed to these standard contractual clauses (hereinafter: "Clauses").
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex
I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an
integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights
and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation
(EU) 2016/679 and, with respect to data transfers from controllers to processors and/or
processors to processors, standard contractual clauses pursuant to Article 28(7) of
Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate
Module(s) or to add or update information in the Appendix. This does not prevent the
Parties from including the standard contractual clauses laid down in these Clauses in a
wider contract and/or to add other clauses or additional safeguards, provided that they do
not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or
freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject
by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against
the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(j) Clause 8 - Clause 8.1(b), 8.9(a), (c), (d) and (e);
(k) Clause 9 - Clause 9(a), (c), (d) and (e);
(l) Clause 12 - Clause 12(a), (d) and (f);
(m) Clause 13;
(n) Clause 15.1(c), (d) and (e);
(o) Clause16(e);
(p) Clause 18 - Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU)
2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those
terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation
(EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations
provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related
agreements between the Parties, existing at the time these Clauses are agreed or entered
into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s) The details of the transfer(s), and in particular the categories
of personal data that are transferred and the purpose(s) for which they are transferred, are
specified in Annex I.B.
Clause 7
Docking clause (a)
An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede
to these Clauses at any time, either as a data exporter or as a data importer, by completing
the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall
become a Party to these Clauses and have the rights and obligations of a data exporter or
data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from
the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data
importer is able, through the implementation of appropriate technical and organisational
measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from
the data exporter. The data exporter may give such instructions throughout the duration of
the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow
those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the
transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as
completed by the Parties, available to the data subject free of charge. To the extent necessary
to protect business secrets or other confidential information, including the measures
described in Annex II and personal data, the data exporter may redact part of the text of the
Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary
where the data subject would otherwise not be able to understand the its content or
exercise his/her rights. On request, the Parties shall provide the data subject with the
reasons for the redactions, to the extent possible without revealing the redacted
information. This Clause is without prejudice to the obligations of the data exporter under
Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or
has become outdated, it shall inform the data exporter without undue delay. In this case, the
data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B.
After the end of the provision of the processing services, the data importer shall, at the
choice of the data 11 exporter, delete all personal data processed on behalf of the data
exporter and certify to the data exporter that it has done so, or return to the data exporter
all personal data processed on its behalf and delete existing copies. Until the data is deleted
or returned, the data importer shall continue to ensure compliance with these Clauses. In
case of local laws applicable to the data importer that prohibit return or deletion of the
personal data, the data importer warrants that it will continue to ensure compliance with
these Clauses and will only process it to the extent and for as long as required under that
local law. This is without prejudice to Clause 14, in particular the requirement for the data
importer under Clause 14(e) to notify the data exporter throughout the duration of the
contract if it has reason to believe that it is or has become subject to laws or practices not in
line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement
appropriate technical and organisational measures to ensure the security of the data,
including protection against a breach of security leading to accidental or unlawful
destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter
“personal data breach”). In assessing the appropriate level of security, the Parties shall take
due account of the state of the art, the costs of implementation, the nature, scope, context
and purpose(s) of processing and the risks involved in the processing for the data subjects.
The Parties shall in particular consider having recourse to encryption or pseudonymisation,
including during transmission, where the purpose of processing can be fulfilled in that
manner. In case of pseudonymisation, the additional information for attributing the
personal data to a specific data subject shall, where possible, remain under the exclusive
control of the data exporter. In complying with its obligations under this paragraph, the data
importer shall at least implement the technical and organisational measures specified in
Annex II. The data importer shall carry out regular checks to ensure that these measures
continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel
only to the extent strictly necessary for the implementation, management and monitoring of
the contract. It shall ensure that persons authorised to process the personal data have
committed themselves to confidentiality or are under an appropriate statutory obligation of
confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data
importer under these Clauses, the data importer shall take appropriate measures to address
the breach, including measures to mitigate its adverse effects. The data importer shall also
notify the data exporter without undue delay after having become aware of the breach. Such
notification shall contain the details of a contact point where more information can be
obtained, a description of the nature of the breach (including, where possible, categories
and approximate number of data subjects and personal data records concerned), its likely
consequences and the measures taken or proposed to address the breach including, where
appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is
not possible to provide all information at the same time, the initial notification shall contain
the information then available and further information shall, as it becomes available,
subsequently be provided without undue delay. 12
(d) The data importer shall cooperate with and assist the data exporter to enable the data
exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to
notify the competent supervisory authority and the affected data subjects, taking into
account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political
opinions, religious or philosophical beliefs, or trade union membership, genetic data, or
biometric data for the purpose of uniquely identifying a natural person, data concerning
health or a person’s sex life or sexual orientation, or data relating to criminal convictions
and offences (hereinafter “sensitive data”), the data importer shall apply the specific
restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented
instructions from the data exporter. In addition, the data may only be disclosed to a third
party located outside the European Union4 (in the same country as the data importer or in
another third country, hereinafter “onward transfer”) if the third party is or agrees to be
bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to
Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appr 1 opriate safeguards pursuant to Articles 46 or
47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal
claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data
subject or of another natural person. Any onward transfer is subject to compliance by the
data importer with all the other safeguards under these Clauses, in particular purpose
limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data
exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular,
the data importer shall keep appropriate documentation on the processing activities carried
out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to
demonstrate compliance with the obligations set out in these Clauses and at the data
exporter’s request, allow for and contribute to audits of the processing activities covered by
these Clauses, at reasonable intervals or if there are indications of non- compliance. In
deciding on a review or audit, the data exporter may take into account relevant
certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent
auditor. Audits may include inspections at the premises or physical facilities of the data
importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including
the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general
authorisation for the engagement of sub-processor(s) from an agreed list. The data importer
shall 14 specifically inform the data exporter in writing of any intended changes to that list
through the addition or replacement of sub-processors in accordance with Section 3 (c)
(Sub-processors) of the of the Data Processing Addendum ("DPA") to which these Clauses
are appended, thereby giving the data exporter sufficient time to be able to object to such
changes prior to the engagement of the sub-processor(s). The data importer shall provide
the data exporter with the information necessary to enable the data exporter to exercise its
right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing
activities (on behalf of the data exporter), it shall do so by way of a written contract that
provides for, in substance, the same data protection obligations as those binding the data
importer under these Clauses, including in terms of third-party beneficiary rights for data
subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its
obligations under Clause 8.8. The data importer shall ensure that the sub-processor
complies with the obligations to which the data importer is subject pursuant to these
Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-
processor agreement and any subsequent amendments to the data exporter. To the extent
necessary to protect business secrets or other confidential information, including personal
data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the
performance of the sub-processor’s obligations under its contract with the data importer.
The data importer shall notify the data exporter of any failure by the sub- processor to fulfil
its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor
whereby - in the event the data importer has factually disappeared, ceased to exist in law or
has become insolvent - the data exporter shall have the right to terminate the sub-processor
contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received
from a data subject. It shall not respond to that request itself unless it has been authorised
to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to
data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In
this 15 regard, the Parties shall set out in Annex II the appropriate technical and
organisational measures, taking into account the nature of the processing, by which the
assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply
with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible
format, through individual notice or on its website, of a contact point authorised to handle
complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance
with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a
timely fashion. The Parties shall keep each other informed about such disputes and, where
appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the
data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual
residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body,
organisation or association under the conditions set out in Article 80(1) of Regulation (EU)
2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or
Member State law. 16
(f) The data importer agrees that the choice made by the data subject will not prejudice
his/her substantive and procedural rights to seek remedies in accordance with applicable
laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other
Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be
entitled to receive compensation, for any material or non-material damages the data
importer or its sub- processor causes the data subject by breaching the third-party
beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and
the data subject shall be entitled to receive compensation, for any material or non-material
damages the data exporter or the data importer (or its sub-processor) causes the data
subject by breaching the third-party beneficiary rights under these Clauses. This is without
prejudice to the liability of the data exporter and, where the data exporter is a processor
acting on behalf of a controller, to the liability of the controller under Regulation (EU)
2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages
caused by the data importer (or its sub-processor), it shall be entitled to claim back from the
data importer that part of the compensation corresponding to the data importer’s
responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a
result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable
and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled
to claim back from the other Party/ies that part of the compensation corresponding to its /
their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own
liability. 17
Clause 13
Supervision
(a) Where the data exporter is established in an EU Member State: The supervisory
authority with responsibility for ensuring compliance by the data exporter with Regulation
(EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent
supervisory authority. Where the data exporter is not established in an EU Member State,
but falls within the territorial scope of application of Regulation (EU) 2016/679 in
accordance with its Article 3(2) and has appointed a representative pursuant to Article
27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in
which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679
is established, as indicated in Annex I.C, shall act as competent supervisory authority. Where
the data exporter is not established in an EU Member State, but falls within the territorial
scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2)
without however having to appoint a representative pursuant to Article 27(2) of Regulation
(EU) 2016/679: The supervisory authority of one of the Member States in which the data
subjects whose personal data is transferred under these Clauses in relation to the offering of
goods or services to them, or whose behaviour is monitored, are located, as indicated in
Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the
competent supervisory authority in any procedures aimed at ensuring compliance with
these Clauses. In particular, the data importer agrees to respond to enquiries, submit to
audits and comply with the measures adopted by the supervisory authority, including
remedial and compensatory measures. It shall provide the supervisory authority with
written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC
AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the
third country of destination applicable to the processing of the personal data by the data
importer, including any requirements to disclose personal data or measures authorising
access by public authorities, prevent the data importer from fulfilling its obligations under
these Clauses. This is based on the understanding that laws and practices that respect the
essence of the fundamental rights and freedoms and do not exceed what is necessary and
proportionate in a democratic society to safeguard one of the objectives listed in Article
23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due
account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing
chain, the number of actors involved and the transmission channels used; intended onward
transfers; the type of recipient; the purpose of processing; the categories and format of the
transferred personal data; the economic sector in which the transfer occurs; the storage
location of the data transferred;
(ii) the laws and practices of the third country of destination– including those
requiring the disclosure of data to public authorities or authorising access by such
authorities – relevant in light of the specific circumstances of the transfer, and the applicable
limitations and safeguards12;
(iii) any relevant contractual, technical or organisational safeguards put in place to
supplement the safeguards under these Clauses, including measures applied during
transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it
has made its best efforts to provide the data exporter with relevant information and agrees
that it will continue to cooperate with the data exporter in ensuring compliance with these
Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it
available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to
these Clauses and for the duration of the contract, it has reason to believe that it is or has
become subject to laws or practices not in line with the requirements under paragraph (a),
including following a change in the laws of the third country or a measure (such as a
disclosure request) indicating an application of such laws in practice that is not in line with
the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has
reason to believe that the data importer can no longer fulfil its obligations under these
Clauses, the data 19 exporter shall promptly identify appropriate measures (e.g. technical or
organisational measures to ensure security and confidentiality) to be adopted by the data
exporter and/or data importer to address the situation [for Module Three: , if appropriate in
consultation with the controller]. The data exporter shall suspend the data transfer if it
considers that no appropriate safeguards for such transfer can be ensured, or if instructed
by [for Module Three: the controller or] the competent supervisory authority to do so. In
this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns
the processing of personal data under these Clauses. If the contract involves more than two
Parties, the data exporter may exercise this right to termination only with respect to the
relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated
pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data
subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial
authorities, under the laws of the country of destination for the disclosure of personal data
transferred pursuant to these Clauses; such notification shall include information about the
personal data requested, the requesting authority, the legal basis for the request and the
response provided; or
(ii) becomes aware of any direct access by public authorities to personal data
transferred pursuant to these Clauses in accordance with the laws of the country of
destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data
subject under the laws of the country of destination, the data importer agrees to use its best
efforts to obtain a waiver of the prohibition, with a view to communicating as much
information as possible, as soon as possible. The data importer agrees to document its best
efforts in order to be able to demonstrate them on request of the data exporter. 20
(c) Where permissible under the laws of the country of destination, the data importer
agrees to provide the data exporter, at regular intervals for the duration of the contract, with
as much relevant information as possible on the requests received (in particular, number of
requests, type of data requested, requesting authorities, whether requests have been
challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c)
for the duration of the contract and make it available to the competent suspensory authority
on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer
pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is
unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in
particular whether it remains within the powers granted to the requesting public authority,
and to challenge the request if, after careful assessment, it concludes that there are
reasonable grounds to consider that the request is unlawful under the laws of the country of
destination, applicable obligations under international law and principles of international
comity. The data importer shall, under the same conditions, pursue possibilities of appeal.
When challenging a request, the data importer shall seek interim measures with a view to
suspending the effects of the request until the competent judicial authority has decided on
its merits. It shall not disclose the personal data requested until required to do so under the
applicable procedural rules. These requirements are without prejudice to the obligations of
the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the
request for disclosure and, to the extent permissible under the laws of the country of
destination, make the documentation available to the data exporter. It shall also make it
available to the competent supervisory authority on request. [For Module Three: The data
exporter shall make the assessment available to the controller.]
(c) The data importer agrees to provide the minimum amount of information permissible
when responding to a request for disclosure, based on a reasonable interpretation of the
request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with
these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with
these Clauses, the data exporter shall suspend the transfer of personal data to the data
importer until compliance is again ensured or the contract is terminated. This is without
prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the
processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data
importer pursuant to paragraph (b) and compliance with these Clauses is not restored
within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court
or supervisory authority regarding its obligations under these Clauses. In these cases, it
shall inform the competent supervisory authority of such non-compliance. Where the
contract involves more than two Parties, the data exporter may exercise this right to
termination only with respect to the relevant Party, unless the Parties have agreed
otherwise.
(d) Personal data that has been transferred prior to the termination of the contract
pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned
to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the
European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU)
2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii)
Regulation (EU) 2016/679 becomes part of 22 the legal framework of the country to which
the personal data is transferred. This is without prejudice to other obligations applying to
the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of the EU Member State, provided such law
allows for third- party beneficiary rights. The Parties agree that this shall be the law of the
Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member
State.
(b) The Parties agree that those shall be the courts of the Republic of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data
importer before the courts of the Member State in which he/she has his/her habitual
residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX I TO THE STANDARD CONTRACTUAL CLAUSES
(A) LIST OF PARTIES:
Data Exporter Data Importer
Name: the party identified as the Name: Giftsenda LLC. ("Giftsenda")
"Customer" in the Services Agreement and
this DPA.
Address: The address provided in this DPA Address: 1337 Massachusetts Ave, Suite
or as otherwise included in the Services 144, Arlington MA 02476, United States
Agreement.
Contact Person's Name, position and Contact Person's Name, position and
contact details: As set out in this DPA or as contact details:
otherwise included in the Services Dmitriy Peregudov
Agreement. CEO
dmitriy@giftsenda.com
Activities relevant to the transfer: See (B) Activities relevant to the transfer: See (B)
below below
Signature and Date: See the execution block Signature and Date: See the execution block
in this DPA. in this DPA.
Role: Controller Role: Processor
(B) DESCRIPTION OF PROCESSING / TRANSFER
Categories of data subjects whose personal Customer may submit personal data to the
data is transferred Services, the extent of which is determined
and controlled by Customer in its sole
discretion, and which may include, but is
not limited to, personal data relating to the
following categories of data subjects:
• Employees of Customer
• Current and potential customers of
Customer
Any other data subjects whose data may be
processed from time to time pursuant to
the Services Agreement and this DPA.
Customer may submit personal data to the
Services, the extent of which is determined
and controlled by Customer in its sole
discretion, and which may include, but is
not limited to, personal data relating to the
following categories of data subjects:
• Employees of Customer
• Current and potential customers of
Customer
Any other data subjects whose data may be
processed from time to time pursuant to
the Services Agreement and this DPA.
Categories of personal data transferred The types of personal data processed by
Giftsenda are determined and controlled by
Customer in its sole discretion and may
include, but are not limited to the following
categories of personal data:
• Contact data (name, title, email address,
telephone number, mailing address)
• Account credentials
• IP address
Any other personal data included by data
subjects in their communications to
Customer