Communications API Data Processing Agreement

DATA PROCESSING AGREEMENT

This Data Processing Agreement (DPA) is made by and between Dotdigital, a trading name of Dynmark International Limited, and the Customer identified in any Service Agreement already existing between the parties or that may incorporate this DPA by reference. This DPA shall be in addition to any obligations set out in any Service Agreement.

Definitions

All capitalised terms in this DPA shall have the meaning as prescribed by the Dotdigital Terms as located at www.dotgitial.com/terms/cpaas-terms or as otherwise agreed between the parties, unless otherwise specified below.

Applicable Law means as applicable and binding on the Customer, Dotdigital and/or the Services:

(a) any law, statute, regulation, byelaw or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the Services are provided to or in respect of, as may be specified in Terms;
(b) the common law and laws of equity as applicable to the parties from time to time;

(c) any binding court order, judgment or decree; or

(d) any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business;

Appropriate Safeguards means such legally enforceable mechanism(s) for transfers of Personal Data as may be permitted under Data Protection Laws from time to time (including, but not limited to, EU Model Contract Clauses or Privacy Shield certification);

Data Controller has the meaning given to that term (or to the term ‘controller’) in Data Protection Laws;

Data Processor has the meaning given to that term (or to the term ‘processor’) in Data Protection Laws;

Data Protection Laws means as applicable and binding on the Customer, Dotdigital and/or the Services:

(a) in the United Kingdom:

(i) the Data Protection Act 2018; and/or
(ii) the General Data Protection Regulation (EU) 2016/679 (or “GDPR”) and/or any corresponding or equivalent national laws or regulations; and/or
(iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003 and/or any corresponding or equivalent national laws or regulations.

(b) in member states of the European Union: the Data Protection Directive or the GDPR, once applicable, and all relevant member state laws or regulations giving effect to or corresponding with any of them;

(c) specifically in relation to the Customer, all data protection and/or privacy laws in which recipient Data Subjects are contacted through the Services are located;

(d) any Applicable Laws replacing, amending, extending, re-enacting or consolidating any of the above Data Protection Laws from time to time;

Data Protection Losses means all liabilities, including all:

(a) costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and

(b) to the extent permitted by Applicable Law:

(i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;

(ii) compensation which is ordered by a Supervisory Authority to be paid to a Data Subject; and

(iii) the reasonable costs of compliance with investigations by a Supervisory Authority;

Data Subject has the meaning given to that term in Data Protection Laws;

Data Subject Request means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws;

GDPR Date means from when the GDPR applies on 25 May 2018;

International Organisation means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries;

International Recipient has the meaning given to that term in clause 6;
Personal Data has the meaning given to that term in Data Protection Laws;

Personal Data Breach means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data;

Processing has the meanings given to that term in Data Protection Laws (and related terms such as process have corresponding meanings);

Processing Instructions has the meaning given to that term in clause 3.2.1;

Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of Dotdigital’s obligations under this Agreement;

Sub-Processor means another Data Processor engaged by Dotdigital for carrying out processing activities in respect of the Protected Data on behalf of the Customer; and

Supervisory Authority means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws.
references to any Applicable Laws (including to the Data Protection Laws and each of them) and to terms defined in such Applicable Laws shall be replaced with or incorporate (as the case may be) references to any Applicable Laws replacing, amending, extending, re-enacting or consolidating such Applicable Law (including the GDPR and any new Data Protection Laws from time to time) and the equivalent terms defined in such Applicable Laws, once in force and applicable. A reference to a law includes all subordinate legislation made under that law.

1. Interaction with the Agreement

1.1

This DPA will take effect from either (as applicable):

1.1.1 The GDPR Date, if Customer accepts the terms of this DPA prior to or on 25 May 2018; or

1.1.2 The date on which the Customer accepts the terms of this DPA, if after the GDPR Date,
and shall continue until the end of dotdigital’s provision of the Services (including any period of suspension, where relevant) (“Term”).

1.2

Except for the changes made by this DPA, the Agreement remains in full force and effect. To the extent that there is any conflict between this DPA and the Agreement, the clauses of this DPA shall prevail.

1.3

Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set out in the Agreement. In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise. Any penalties issued by a Supervisory Authority and incurred by dotdigital in relation to Protected Data arising from or in connection with the Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall reduce dotdigital’s liability under the Agreement and be considered a liability to the Customer under the Agreement.

2. Data Processor and Data Controller

1.1

The parties agree that, for the Protected Data, the Customer shall be the Data Controller and dotdigital shall be the Data Processor.

2.2

dotdigital shall process Protected Data in compliance with:

2.2.1 the obligations of Data Processors under Data Protection Laws in respect of the performance of its obligations under this Agreement; and

2.2.2 the terms of this DPA, the Terms and the Order Form which sets out the Customer’s instructions in relation to such processing activities.

2.3

The Customer shall comply with:

2.3.1 all Data Protection Laws in connection with the processing of Protected Data, the Services and the exercise and performance of its respective rights and obligations under this Agreement, including maintaining all relevant regulatory registrations and notifications as required under Data Protection Laws; and

2.3.2 the terms of this DPA.

2.4

The Customer warrants, represents and undertakes, that:

2.4.1 all data sourced by the Customer for use in connection with the Services shall comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from, Data Subjects), with Data Protection Laws;

2.4.2 all instructions given by it to dotdigital in respect of Personal Data shall at all times be in accordance with Data Protection Laws; and

2.5

The Customer shall not unreasonably withhold, delay or condition its agreement to any change or amendment requested by dotdigital in order to ensure the Services and dotdigital (and each Sub-Processor) can comply with Data Protection Laws.

3. Instructions and details of processing

3.1

By entering into this DPA, Customer instructs dotdigital to process Customer Protected Data only in accordance with Applicable Law:

3.1.1 To provide the Services;

3.1.2 As further specified by Customer’s use of the Services or the Software;

3.1.3 As documented in the form of the terms and this DPA; and

3.1.4 As further documented in any other written instructions provided by the Customer and acknowledged by dotdigital as being instructions for the purposes of this DPA.

3.2

Insofar as dotdigital processes Protected Data on behalf of the Customer, dotdigital:

3.2.1 unless required to do otherwise by Applicable Law, shall (and shall take steps to ensure each person acting under its authority shall) process the Protected Data only on and in accordance with the Customer’s documented instructions as set out in this clause, as updated from time to time and as agreed between the parties (Processing Instructions);

3.2.2 if Applicable Law requires it to process Protected Data other than in accordance with the Processing Instructions, shall notify the Customer of any such requirement before processing the Protected Data (unless Applicable Law prohibits such information on important grounds of public interest); and

3.2.3 shall inform the Customer if dotdigital becomes aware of a Processing Instruction that, in dotdigital’s opinion, infringes Data Protection Laws, provided that:

(a) this shall be without prejudice to clauses 2.3 and 2.4; and

(b) to the maximum extent permitted by mandatory law, dotdigital shall have no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities (including any Data Protection Losses) arising from or in connection with any processing in accordance with the Customer’s Processing Instructions following the Customer’s receipt of that information; and

3.3

The subject matter and details of the processing of Protected Data to be carried out by dotdigital under this DPA shall comprise the processing set out in Schedule 1 (Data processing details), as may be updated from time to time as agreed between the parties.

4. Technical and organisational measures

4.1

dotdigital shall implement and maintain, at its cost and expense and in relation to the processing of Protected Data by dotdigital, technical and organizational measures taking into account the nature of the processing, to assist the Customer insofar as is possible in the fulfillment of the Customer’s obligations to respond to Data Subject Requests relating to Protected Data.

5. Using Sub-Processors

5.1

Customer specifically authorises the engagement of dotdigital’s affiliates and associated group companies as Sub-Processors.

5.2

Further, Customer acknowledges that dotdigital relies on subcontractors and Sub-Processors in providing critical elements of hosting and supporting the Services and delivery of messages using the Services to the wider mobile network. As such, the Customer provides their consent for dotdigital to use Sub-Processors in the delivery of the Service. Where dotdigital uses Sub-Processors in relation to Protected Data, dotdigital shall ensure:

5.2.1 via a written contract that the Sub-Processor only accesses and processes Protected Data to perform the obligations subcontracted to it and does so in accordance with the measures contained in this DPA that is enforceable by dotdigital; and

5.2.2 remain fully liable for all the acts and omissions of each Sub-Processor as if they were its own.

5.3

When required by law, dotdigital shall inform the Customer of any intended changes concerning the addition or replacement of a Sub-Processor with access to Protected Data and give the Customer the opportunity to object to such changes (on reasonable grounds and only relating to data protection).

6. International data transfers

6.1

dotdigital shall not cause or permit any Protected Data to be transferred outside of the EEA unless such transfer is necessary for the purposes of dotdigital carrying out its obligations under the Agreement, in which case, the provisions of this clause 6 shall apply.

6.2

Subject to clause 6.3, if Protected Data is to be processed outside of the EEA, dotdigital agrees to provide and maintain appropriate safeguards as set out in Article 46 GDPR to lawfully transfer the Personal Data to a third country.

6.3

Clause 6.2 shall not apply if the processing of the Protected Data is carried out in a country that the European Commission has considered as offering an adequate level of protection.

7. Staff

7.1

dotdigital shall ensure that all persons authorised by it (or by any Sub-Processor) to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential (except where disclosure is required in accordance with Applicable Law, in which case dotdigital shall, where practicable and not prohibited by Applicable Law, notify the Customer of any such requirement before such disclosure).

8. Assistance with the Customer’s compliance and Data Subject rights

8.1

dotdigital shall refer all Data Subject Requests it receives to the Customer within three Business Days of receipt of the request, provided that if the number of Data Subject Requests exceeds three per calendar month, the Customer shall pay dotdigital’s Charges calculated on a time and materials basis for recording and referring the Data Subject Requests in accordance with this clause 8.1.

8.2

Further to the above and notwithstanding anything to the contrary in the Terms, dotdigital reserves the right to disclose the identity of the Customer to any relevant Data Subject following any such request from a Data Subject.

8.3 dotdigital shall provide such reasonable assistance as the Customer reasonably requires (taking into account the nature of processing and the information available to dotdigital) to the Customer in ensuring compliance with the Customer’s obligations under Data Protection Laws with respect to:

8.3.1 security of processing;

8.3.2 data protection impact assessments (as such term is defined in Data Protection Laws);

8.3.3 prior consultation with a Supervisory Authority regarding high risk processing; and

8.3.4 notifications to the Supervisory Authority and/or communications to Data Subjects by the Customer in response to any Personal Data Breach.

9. Records, information and audit

9.1

dotdigital shall maintain, in accordance with Data Protection Laws binding on dotdigital, written records of all categories of processing activities carried out on behalf of the Customer.

9.2

dotdigital shall, in accordance with Data Protection Laws, make available to the Customer such information as is reasonably necessary to demonstrate dotdigital’s compliance with the obligations of Data Processors under Data Protection Laws, and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose, subject to the Customer:

9.2.1 giving dotdigital reasonable prior notice of such information request, audit and/or inspection being required by the Customer;

9.2.2 ensuring that all information obtained or generated by the Customer or its auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential (save for disclosure to the Supervisory Authority or as otherwise required by Applicable Law);

9.2.3 ensuring that such audit or inspection is undertaken during normal business hours, with minimal disruption to dotdigital’s business and the business of other Customers of dotdigital; and

9.2.4 paying dotdigital’s reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits.

10. Breach notification

10.1

In respect of any Personal Data Breach involving Protected Data, dotdigital shall, without undue delay (but in any event within 24 hours) from when dotdigital becomes aware of the same:

10.1.1 notify the Customer of the Personal Data Breach; and

10.1.2 provide the Customer, where possible, with details of the Personal Data Breach.

10.2

Notice of a Personal Data Breach as contemplated under 10.1.1 above shall include:

10.2.1 the nature of the Personal Data Breach (including, where possible, the categories and approximate number of data subjects and data records concerned);

10.2.2 the likely consequences of the Personal Data Breach; and

10.2.3 the measures taken or proposed to be taken to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.

11. Deletion or return of Protected Data and copies

11.1

dotdigital shall, at the Customer’s written request, delete or return all the Protected Data to the Customer in such form as the Customer reasonably requests within a reasonable time after the earlier of:

11.1.1 the end of the provision of the relevant Services related to processing; or

11.1.2once processing by dotdigital of any Protected Data is no longer required for the purpose of dotdigital’s performance of its relevant obligations under this Agreement, and delete existing copies (unless storage of any data is required by Applicable Law and, if so, dotdigital shall inform the Customer of any such requirement).

12. Cooperation

12.1

If a party receives a compensation claim from a person relating to processing of Protected Data, it shall promptly provide the other party with notice and full details of such claim. The party with conduct of the action shall:

12.1.1 make no admission of liability nor agree to any settlement or compromise of the relevant claim without the prior written consent of the other party (which shall not be unreasonably withheld or delayed); and

12.1.2 consult fully with the other party in relation to any such action.

Schedule 1 – Data Processing Details

1 Subject-matter of processing:

dotdigital’s provision of the Services to the Customer.

2 Duration of the processing:

The term of any relevant Order Form until deletion of all Protected Data by dotdigital in accordance with the DPA.

3 Nature and purpose of the processing:

dotdigital will process Customer Protected Data for the purposes of providing the Services to the Customer in accordance with the DPA and the Terms.

4 Type of Personal Data:

Data relating to individuals provided to dotdigital via the provision of the Services by or at the direction of the Customer or end-users of the Customer.

5 Categories of Data Subjects:

Data subjects include the individuals about whom data is provided to dotdigital via the Services by or at the direction of Customer or end-users of the Customer.