DATA PROCESSING AGREEMENT
This Data Processing Agreement (“DPA”) is hereby entered by and between PixFuture Media Inc. and PixFuture Media Inc and its Affiliates (collectively “PixFuture”) and the undersigned counterparty on behalf of itself and its Affiliates (collectively “Company”), each a “party” and collectively, the “parties“. This DPA sets forth the parties’ responsibilities and obligations regarding the Processing of Personal Data, including without limitations internet protocol (“IP”) address, IDs (as defined below) and similar online identifiers, during the course of the parties’ engagement under the Master Service Agreement previously signed between the parties (“MSA”).
This DPA forms an integral part of the MSA and amends any previously terms relating to the Processing of Personal Data. This DPA shall be effective as of parties’ signature date if such date is before May 25, 2018; or as of May 25, 2018 Company’s signature date is made following such date (“Effective Date”).
Capitalized terms not defined herein shall have the respective meanings given to them in the MSA.
1.1 “Affiliates” means any entity which is controlled by, controls or is in common control with one of the parties.
1.2 “Data” means any and all Data Subject’s data collected through the course of the Agreement or shared between the parties that may include, inter alia, demographic data, device information, Ad IDs, cookies, browsing URLs, apps installed and/or accessed, events, and geo localization data. The Data includes, without limitation, data deemed as Personal Data.
1.3 “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and data protection laws and regulations (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
1.4 “Controller“, “Processor“, “Data Subject“, “Personal Data“, “Processing” (and “Process“), “Personal Data Breach”, “Special Categories of Personal Data” and “Supervisory Authority” shall have the meanings given in EU Data Protection Law.
1.5 “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); (iv) any legislation replacing or updating any of the foregoing (v) any judicial or administrative interpretation of any of the above, including any binding guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority.
1.6 “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.
1.7 “Security Incident” means any security breach relating any Personal Data elements leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data within, Personal Data transmitted, stored or otherwise processed; including without limitation the meaning assigned to it under paragraph 12 of Article 4 of the GDPR. For the avoidance of doubt, any Personal Data Breach of the other Party’s Personal Data will comprise a Security Breach.
This DPA applies solely to the extent that EU Data Protection Law applies to the Processing of Personal Data under the Agreement, including if (i) the Processing is in the context of the activities of an establishment of either party in the European Economic Area (“EEA”) or (ii) 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. Notwithstanding the above, this DPA does not apply to aggregated reporting or statistics information a party may collect from Data Subject or provide to the other party.
3) Parties’ Roles
The parties agree and acknowledge that under the performance of their obligations set forth in the MSA, and with respect to the Processing of Personal Data, PixFuture is acting as a Data Processor and the Company is acting as a Data Controller. Each party shall be individually and separately responsible for complying with the obligations that apply to it as a Controller under applicable Data Protection Law.
4) Processing of Personal Data and Compliance with Data Protection Law
4.1 In performing its obligations under the Agreement, the parties may provide Personal Data to the other party. Each party shall collect, process and share Personal Data in compliance with applicable Data Protection Law, industry standards and its obligations herein.
4.2 Without derogating from the general or specific terms herein, the Company hereby warrants and represents that as of May 25, 2018 it will be compliant with EU Data Protection Law, and in its use of PixFuture Services, it shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Company obtained Personal Data.
4.3 During the Term of the MSA, PixFuture shall only Process Personal Data on behalf of and in accordance with the MSA and any and shall treat Personal Data as Confidential Information. Company instructs PixFuture to Process Personal Data for the following purposes: (i) Processing in accordance with the MSA in order to provide the PixFuture Services; (ii) Processing in order to comply with additional instructions provided by the Company and agreed in written between the parties, which shall ensure that its instructions for the Processing of Personal Data shall comply with the Data Protection Law.
4.4 The Company sets forth the details of the Processing of the Personal Data under the MSA, as required by Article 28(3) of the GDPR in Schedule 1, attached hereto.
4.5 PixFuture may Process Personal Data other than as instructed by the Company if it is mandatory under applicable law. PixFuture shall make best efforts to inform the Company of such requirement unless prohibited under applicable law.
4.6 Each party shall identify and provide contact details for its contact point within its organization authorized to respond to enquiries concerning Processing of the Personal Data or its Data Protection Officer (“DPO”), as applicable. In the event of a change of the above contact person or DPO’s identity, each party shall provide updated contact details.
5.3 Unless otherwise agreed to in writing by the parties, the parties shall not share Personal Data that allows Data Subjects to be directly identified (e.g., name or email) or any Personal Data that contains Personal Data relating to children under 16 years old. In addition, Special Categories of Personal Data shall not be Processed or shared in connection with the performance of each party’s obligations under the MSA.
5.5 It is agreed that where either party receives a request from a Data Subject or an applicable authority in respect of Personal Data Controlled or Processed by the other party, where relevant, the party receiving such request will direct the Data Subject or the authority to the other party, as applicable, in order to enable the other party to respond directly to the Data Subject’s request. Each party shall reasonable cooperate and assist the other party in handling of a Data Subject’s or an authority’s request, to the extent permitted under Data Protection Law.
6.1 Company acknowledges that in the provision of the PixFuture’s Services, PixFuture may transfer Personal Data to and otherwise interact with third party data processors (“Sub-Processor”). Company authorizes PixFuture to engage and appoint such Sub-Processors to Process Personal Data, as well as permits each Sub-Processor to appoint a Sub- Processor on its behalf.
6.2 PixFuture may continue its engagement with its current Sub-Processors as of the date of this DPA as detailed in Schedule 2 attached hereto, which the engagement is which use is subject to the respective Sub-Processors terms and applicable guidelines.
6.4 The Company may object the appointment of the new Sub-Processor, as follows:
6.4.1 The Company may provide PixFuture, within seven (7) days of Sub-Processor Notice, with a written notification stating its objection, based on reasonable grounds, to the appointment of the New Sub-Processor.
6.4.2 PixFuture may not appoint for the processing of Company’s Personal Data the proposed Sub-Processor until reasonable steps have been taken to address the objections raised by Company. PixFuture shall provide the Company with a written notification detailing the steps taken in this regard.
6.4.3 Within three (3) days of receipt of PixFuture’s notice regarding the steps taken as detailed in Section 6.4.2 above, the Company may notify PixFuture it does not find such steps taken by PixFuture sufficient to settle its objections. In the event the Company have not provided such notification, it will constitute Company’s approval of the Sub Processor. In the event the Company further object, each party may terminate the MSA upon a written notification effective immediately, without liability.
6.5 PixFuture will enter into separate contractual arrangements with such Sub-Processors binding them to comply with obligations in accordance with Data Protection Law.
7) Return and Deletion of Personal Data
7.1 Subject to Section 7.2, PixFuture shall promptly and in any event within up to sixty (60) days of the date of cessation the MSA, delete or pseudonymize all copies of those Personal Data obtained through the Company, except such copies as authorized or required to be retained in accordance with applicable law and/or regulation.
7.2 PixFuture may retain the Personal Data to the extent authorized or required by applicable laws, provided that PixFuture shall ensure the confidentiality of all such Personal Data and shall ensure that it is only processed for legal purpose(s).
8) Technical and Organizational Measures & Security Incident
8.1 Each party shall implement appropriate technical and organizational measures to protect the Personal Data and its security, confidentiality and integrity and the Data Subject’s rights, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing the Personal Data, as well as the risk of varying likelihood and severity for the consumer’s rights, in order to ensure a level of security appropriate to that risk, including measures such as access control, auditing, encrypted transmission of data, encrypted storage and physical protections in-line with industry best practices, in accordance Data Protection Laws.
8.2 Description of the technical and organizational measures implemented by PixFuture, are available at: https://www.pixfuture.com/terms-and-conditions/ (“Security Information Page”). PixFuture may update or modify the Security Information Page from time to time provided that such updates and modifications will not result in the degradation of the overall security of the Personal Data.
8.3 PixFuture shall take reasonable steps to ensure that its personal access to the Personal Data is limited on a need to know or access basis, and that its personnel receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access or use of the Personal Data.
8.4 The Company hereby confirms that the Security Information Page detailed above provide an appropriate level of protection for the Company’s Personal Data Processed through the PixFuture Services, taking into consideration the nature of Personal Data and the risks associated with the Processing of the Personal Data.
8.5 In the event that PixFuture or Company suffer a confirmed Security Incident, each party shall notify the other party, by means of any applicable communication, without undue delay. The parties shall cooperate in good faith to agree and action such measures as may be necessary to mitigate or remedy the effects of the Security Incident.
8.6 A notification of a Security Incident by PixFuture shall not constitute an acknowledgement by PixFuture of any liability with respect to applicable Personal Data related to the Security Incident.
9) Data Protection Impact Assessment and Prior Consultation.
At the written request of the Company, PixFuture shall provide reasonable assistance, at the Company’s expense, with any data protection impact assessments or prior consultations with Supervising Authorities or other competent data privacy authorities, as required under any Data Protection Laws. Such assistance shall be solely in relation to Processing of Personal Data provided by the Company.
10) Audit Rights
10.1 Subject to the terms of this Section 10, PixFuture shall make available to a reputable auditor nominated by the Company in coordination with PixFuture, upon prior written request and solely once per year, such information necessary to reasonably demonstrate compliance with this DPA, and shall allow for audits, including inspections, by such reputable auditor solely in relation to the Processing of the Personal Data provided by the Company, and subject to a written confidentiality obligations signed by the auditor (“Audit”). In any event, the Audit shall be subject to the terms of this DPA, and to PixFutures’s obligations to third parties, including with respect to confidentiality. Cedao may object in writing to an auditor appointed by the Company in the event PixFuture reasonably believes, the auditor is not suitably qualified or independent, a competitor of PixFuture or otherwise manifestly unsuitable (“Objection Notice”). In the event of Objection Notice, the Company will appoint a different auditor or conduct the Audit itself.
10.2 Company shall bear all expenses related to the Audit and shall reimburse PixFuture for all such expenses occurred to it due to the Audit, and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to PixFuture’s premises, equipment, personnel and business while its personnel are on those premises in the course of such Audit.
10.3 The Company shall provide PixFuture with a reasonable prior written request for any Audit or inspection to be conducted. The parties shall mutually agree upon the scope, timing and duration of the Audit or inspection in addition to the reimbursement rate for which Company shall be responsible.
10.4 It is hereby agreed that the Audit will be conducted as follows: (i) upon Company’s written request, PixFuture will provide the Company or its appointed auditor with the most recent certifications and/or summary audit report(s), which PixFuture has procured to regularly test, assess and evaluate the effectiveness of its security measures; (ii) PixFuture will reasonably cooperate with the Company by providing available additional information concerning the security measures; (iii) in the event further information is needed by the Company in order to comply with a competent Supervisory Authority’s request, the Company will inform PixFuture in writing to enable it to provide such information or to grant needed access, at PixFuture’s sole discretion; (iv) solely to the extent the above does not enable the Company to satisfy an audit obligation mandated by applicable law or legally mandated entities, the Company or its appointed auditor may conduct an onsite visit of the facilities used to provide the PixFuture Service and under PixFuture’s control. Such visit will occur with at least 30 days’ prior written notice, during normal business hours and only in a manner that causes minimal disruption to PixFuture’s business, and in accordance with any audit procedures reasonably required by PixFuture in order to protect its data and business.
10.5 The Company shall promptly notify PixFuture with information regarding any non-compliance discovered during the course of an Audit.
11) Data Transfer
Where EU Data Protection Law applies, neither party shall transfer 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.
12.1 Each party shall take out and maintain insurance policies to the value sufficient to meet their respective liabilities under or in connection with this DPA and the Agreement. Upon a party’s request, the other party will provide evidence that such insurance is in place.
12.2 The total combined liability of either party towards the other party and its Affiliates under or in connection with the DPA will be limited to any liability cap set forth in the MSA.
13.1 The parties to this DPA hereby submit to the choice of jurisdiction stipulated in the MSA with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity.
13.2 This DPA 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 MSA.
13.4 This DPA is not intended to, and does not in any way limit or derogate from Company’s own obligations and liabilities towards PixFuture under the MSA, and/or pursuant to the EU Data Protection Laws.
13.5 Nothing in this DPA shall confer any benefits or rights on any person or entity other than the parties to this DPA.
Details of Processing of Controller Personal Data
This Schedule 1 includes certain details of the Processing Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Personal Data
The nature and purpose of the Processing of Personal Data
To provide the PixFuture Services, as detailed in the MSA, including without limitation to display advertising to Data Subjects and optimizing performance.
The types of Personal Data to be Processed
The categories of Data Subject to whom the Personal Data relates
Company’s end users to which EU Data Protection Law applies and its Personal Data is provided to PixFuture in order to provide the PixFuture’s Services. The obligations and rights of the Company are set out in the MSA and this DPA.
The obligations and rights of the Company and its Affiliates
As set out in the MSA and this DPA.
(updated: May 7, 2018)