BidSwitch Inc. Data Processing Addendum

BidSwitch Inc. Data Processing Addendum

This Data Processor Addendum was updated on April 22, 2021.

1.      The terms and conditions in this Data Processing Addendum (“DPA”), are entered into between BIDSWITCH Inc. on behalf of itself and any Affiliates that are providing services to Customer (“BIDSWITCH”); and You (“Customer”), pursuant to the terms of the Agreement (defined below).

2.     This DPA together with the Agreement, constitute a legally binding agreement and governs Your use of the BIDSWITCH Services. Customer agrees that this DPA is like any written negotiated agreement signed by Customer and agrees to enter into this DPA on behalf of itself and, to the extent required under Applicable Data Protection Law, in the name and on behalf of any group companies or affiliates whom use the Services. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

3.     Background

3.1    BIDSWITCH and Customer have entered into a master services agreement, together with one or more connected service orders and/or agreements (collectively the “Agreement“), pursuant to which BIDSWITCH has agreed to provide the Services.

3.2    The parties wish to define their respective data protection obligations relating to the BIDSWITCH’s provision of Services to Customer.

4.     Details of the processing.

4.1    The subject-matter of processing of personal data by BIDSWITCH is the personal data processing required to performance of the Services pursuant to the Agreement. The duration of the processing is for the Term of the Agreement; the nature and purpose of the Processing is to provide the Services under the Agreement, the types of personal data is information unique to internet user(s), used by advertisers to present advertising to that internet user(s) and categories of data subjects processed under this DPA are the aforementioned internet users. If the Agreement is materially deficient in respect of the subject matter of this Clause 4, the parties may supplement the Agreement with additional information.

  1. Data Protection Obligations

5.1    Definitions: In this Clause, the following terms shall have the following meanings:

(a)        “controller“, “processor“, “data subject“, “personal data“, “processing” (and “process“), “business”, “service provider” and “special categories of personal data” shall have the meanings given in Applicable Data Protection Law;

(b)        “Applicable Data Protection Law” shall mean the EU General Data Protection Regulation (Regulation 2016/679) (the “GDPR“), the GDPR as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR“) and the California Consumer Privacy Act of 2018 California Civil Code § 1798.100 et seq. (“California Consumer Privacy Act” or “CCPA”), together with any other laws applicable to the processing of personal data;

(c)        “personal data” as used herein shall also refer to “personal information” as that term is defined under Applicable Data Protection Law;

(d)        “data subject” as used herein shall also refer to “consumer” as that term is defined under Applicable Data Protection Law;

(e)        “Standard Contractual Clauses” means the standard contractual clauses for Processors approved by the European Commission or the United Kingdom’s Secretary of State (as applicable), as may be amended or replaced by the European Commission or the United Kingdom’s Secretary of State (as applicable) from time to time. The Standard Contractual Clauses as at the date of this DPA are as set out at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087; and

(f)         “Supplementary Measures” means the provisions set out in Appendix 3 to this DPA;

(g)        “subprocessor” shall mean a party appointed by a processor or service provider to process personal data on behalf of that processor or service provider.

5.2    Relationship of the parties: Customer (as the controller in its own right or as the processor who acts under instruction from third party controller(s)) or another business appoints BIDSWITCH as a processor (or subprocessor, as the case may be) to process the personal data described in the Agreement (the “Data“) for the purposes described in the Agreement (or as otherwise agreed in writing by the parties) (the “Permitted Purpose“). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law. If BIDSWITCH becomes aware that processing for the Permitted Purpose infringes Applicable Data Protection Law, it shall promptly inform Customer.

5.3    Service provider limitations: Customer is a business and BIDSWITCH is a service provider as those terms are defined under the Applicable Data Protection Law. BIDSWITCH shall not: (a) sell personal data; (b) retain, use, or disclose personal data for any purpose other than for the Permitted Purpose; (c) retain, use, or disclose personal data for a commercial purpose other than for the Permitted Purpose; or (d) retain, use, or disclose personal data outside of the direct business relationship between BIDSWITCH and Customer. BIDSWITCH certifies that it understands these restrictions and will comply with them.

5.4    Prohibited data: Customer shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to BIDSWITCH for processing.

5.5    International transfers: BIDSWITCH shall not transfer the Data outside of the European Economic Area (“EEA“) unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Where BIDSWITCH processes personal data (i) relating to individuals located in the European Economic Area in a territory outside of the European Economic Area that does not have adequate data protection laws (as determined by the EU Commission); or (ii) relating to individuals located in the United Kingdom in a territory outside of the United Kingdom that does not have adequate data protection laws (as determined by the United Kingdom’s Secretary of State), the Standard Contractual Clauses shall be incorporated by reference into this DPA, shall apply in relation to such Personal Data and the Supplementary Measures shall apply. For the purposes of the Standard Contractual Clauses: (a) Customer is the “data exporter” and BIDSWITCH is the “data importer” for the purposes of the Standard Contractual Clauses; (b) Appendix 1 to the Standard Contractual Clauses shall be deemed completed with the information set out in Appendix 1 to this DPA; (c) Appendix 2 to the Standard Contractual Clauses shall be deemed completed with the information set out in Appendix 2 to this DPA; and (d) the optional illustrative indemnification clause in the Standard Contractual Clauses shall be deemed deleted.

5.6    Confidentiality of processing: BIDSWITCH shall ensure that any person it authorises to process the Data (an “Authorised Person“) shall protect the Data in accordance with BIDSWITCH’s confidentiality obligations under the Agreement.

5.7    Security: BIDSWITCH shall implement technical and organisational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a “Security Incident“).

5.8    Subcontracting: Customer consents to BIDSWITCH engaging third party organisations (“subcontractors”) to process the Data for the Permitted Purpose provided that: (i) BIDSWITCH maintains an up-to-date list of its subcontractors at www.iponweb.com/subprocessors which it shall update with details of any change in subcontractors at least 10 days’ prior to any such change; (ii) BIDSWITCH imposes data protection terms on any subcontractor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and (iii) BIDSWITCH remains liable for any breach of this Clause that is caused by an act, error or omission of its subcontractor. Customer may object to BIDSWITCH’s appointment or replacement of a subcontractor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, BIDSWITCH will either not appoint or replace the subcontractor or, if this is not possible, Customer may suspend or terminate the Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).

5.9    Cooperation and data subjects’ rights: BIDSWITCH shall provide reasonable and timely assistance to Customer (at Customer’s expense) to enable Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to BIDSWITCH, BIDSWITCH shall promptly inform Customer providing full details of the same.

5.10 Data Protection Impact Assessment: BIDSWITCH shall and provide reasonable cooperation to Customer (at Customer’s expense) in connection with any data protection impact assessment that may be required under Applicable Data Protection Law.

5.11 Security incidents: If it becomes aware of a confirmed Security Incident, BIDSWITCH shall inform Customer without undue delay and shall provide reasonable information and cooperation to Customer so that Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law. BIDSWITCH shall further take such any reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep Customer informed of all material developments in connection with the Security Incident.

5.12 Deletion or return of Data: Upon termination or expiry of the Agreement, BIDSWITCH shall (at Customer’s election) destroy or return to Customer all Data in its possession or control. This requirement shall not apply to the extent that BIDSWITCH is required by applicable law to retain some or all of the Data, or to Data it has archived on back-up systems, in which event BIDSWITCH shall securely isolate and protect from any further processing except to the extent required by such law until deletion is possible.

5.13 Audit: Customer acknowledges that BIDSWITCH is audited against ISO 27001, standards by independent third party auditors. Upon request, BIDSWITCH shall supply a summary copy of its audit report(s) to Customer, which shall be subject to the confidentiality provisions of the Agreement. BIDSWITCH shall also respond to any written audit questions submitted to it by Customer, provided that Customer shall not exercise this right more than once per year.

 

Appendix 1 – Subject Matter and Details of the Processing

Data subjects: The Personal Data transferred concern the following categories of Data Subjects:

The categories of data subjects identified in Clause 4 of the DPA.

Categories of data: The Personal Data concern the following categories of data:

The data identified in Clause 4 of the DPA.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

No special categories of data

Processing operations:

The objective of processing of personal data by the parties is as set out in Clause 4 of the DPA.

 

Appendix 2 – Description of the technical and organisational security measures implemented by the data importer

In all cases, the data importer uses various security technologies and procedures that help protect personal data from unauthorized access, use, disclosure, alteration or destruction.

For example:

  • Personnel: Only qualified and authorized employees are permitted to access personal data, and they may do so only for permitted business functions.
  • Additional Safeguards: We maintain physical, electronic and procedural safeguards in connection with the collection, storage and disclosure of your Information. Our security procedures mean that we may request proof of your identity before we disclose personal data to you.
  • Trusted Vendors:We rely only on vendors who ensure an appropriate level of security of your Data. In this context, we use only secure cloud servers, including AWS cloud – a secure, private cloud platform.
    Amazon Web Services (“AWS”) and Google Cloud Platform are BIDSWITCH sub-processors. AWS and Google Cloud Platform each use various security technologies and procedures to protect personal data and is compliant with third-party assurance frameworks such as ISO 27017 for cloud security, ISO 27018 for cloud privacy, PCI DSS Level 1, and SOC 1, SOC 2, and SOC 3. For more details please see security and privacy policy at aws.amazon.com and Google Cloud Platform at www.cloud.google.com.

 

Appendix 3 – Supplementary Measures

  1. If BIDSWITCH receives an order or request to disclose Transferred Personal Data to a law enforcement, regulatory, judicial or governmental authority (an “Authority“), whether on a binding or voluntary basis, BIDSWITCH shall:

(a)          promptly notify the Customer of such Authority’s data access request;

(b)          inform the Authority that it is a Processor of the Personal Data and that the Customer has not authorised BIDSWITCH to disclose that Personal Data to the Authority;

(c)          inform the Authority that any and all requests or demands for relating to the Transferred Personal Data should be notified to or served upon the Customer (as the Controller) in writing; and

(d)          not provide the Authority with access to Transferred Personal Data unless and until authorised by the Customer,

          save to the extent any such order or request or other legally binding obligation on BIDSWITCH requires BIDSWITCH to do otherwise.

  1. In the event BIDSWITCH is under a legal prohibition or a legal compulsion that prevents it from complying with paragraphs 1(a) to 1(a) in full, BIDSWITCH shall use reasonable and lawful efforts to challenge such prohibition or compulsion (and the Customer acknowledges that such challenge may not always be reasonable or possible in light of the nature, scope, context and purposes of the intended Authority access request and the reasonable prospects and costs of successfully challenging the prohibition or compulsion).
  2. Paragraphs 1 and 2 shall not apply in the event that, taking into account the nature, scope, context and purposes of the intended Authority’s access to the Data, BIDSWITCH has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual. In such event, BIDSWITCH shall notify the Customer as soon as practicable following such Authority’s access and provide the Customer with full details of the same, unless and to the extent BIDSWITCH is legally prohibited from doing so.
  3. BIDSWITCH shall not knowingly disclose the Transferred Personal Data in a massive, disproportionate and indiscriminate manner that goes beyond what is necessary in a democratic society.
  4. BIDSWITCH shall have in place, maintain and comply with a policy governing personal data access requests from Authorities which at minimum prohibits:

(a)          massive, disproportionate or indiscriminate disclosure of personal data relating to data subjects in the European Economic Area or the United Kingdom; and

(b)          disclosure of personal data relating to data subjects in European Economic Area or the United Kingdom to an Authority without a subpoena, warrant, writ, decree, summons or other legally binding order that compels disclosure of such personal data.

  1. BIDSWITCH shall have in place and maintain in accordance with good industry practice measures to protect the Transferred Personal Data from unauthorised interception (including in transit from the Customer to BIDSWITCH and between different systems and services). This includes having in place and maintaining network protection to deny attackers the ability to intercept Transferred Personal Data and encryption of Transferred Personal Data whilst in transit to deny attackers the ability to read Transferred Personal Data.