DATA PROCESSING ADDENDUM
Last Updated: July 11, 2019
2. Processing of Personal Information.
a. The parties acknowledge and agree that StudioNow will process Personal Information in connection with Company’s use of the Platform. Company is the controller or business that determines the purposes for and the manner in which Personal Information is processed by StudioNow, and StudioNow is the processor or service provider that processes Personal Information according to Client’s instructions.
b. Company hereby instructs Service Provide to process Personal Information for purposes of (i) providing the Platform in accordance with the Terms; and (ii) complying with Company’s documented written instructions (e.g., via email). If StudioNow must process Personal Information as otherwise required by applicable law, StudioNow shall inform Company of that legal requirement before processing Personal Information, unless that law prohibits such disclosure on important grounds of public interest.
c. StudioNow shall process Personal Information according to the following specifications:
i. The subject matter of the processing is providing the Platform in accordance with the Terms.
ii. The duration of the processing is for the duration of the Terms except where otherwise required by applicable law or legal obligation, or for StudioNow to protect its rights or those of a third party.
iii. The categories of individuals, consumers, or data subjects whose Personal Information may be processed in providing the Platform include, without limitation, Company’s personnel, representatives, contractors, partners, vendors, end users, and persons of interest.
iv. The types of Personal Information are determined and controlled by Company, in Company’s discretion, and may include, without limitation, name, email address, postal address, title, and phone number.
d. StudioNow shall not: (i) sell Personal Information; (ii) retain, use, or disclose Personal Information for any purpose other than for the specific purpose of providing the Platform; (iii) retain, use, or disclose Personal Information for a commercial purpose other than providing the Platform; or (iv) retain, use, or disclose Personal Information outside of the direct business relationship between StudioNow and Company. StudioNow certifies that it understands these restrictions and will comply with them.
e. Company is solely responsible for the accuracy, quality, and legality of Personal Information. Company represents and warrants that (i) Company has provided all legally required notices and has a lawful basis (including consent as necessary) for the sharing, transfer, and processing of Personal Information with, to, and by StudioNow; and (ii) Company has complied (and will continue to comply) with all Applicable Data Protection Laws, and StudioNow’s processing of Personal Information in accordance with Company’s instructions will not cause StudioNow to violate any Applicable Data Protection Laws.
a. Company provides StudioNow with general written authorization to engage subprocessors in connection with Company’s use of the Platform. StudioNow will enter into a written agreement with each subprocessor containing data protection obligations no less protective than those in this DPA with respect to the protection of Personal Information. StudioNow shall be liable for the acts and omissions of its subprocessors to the same extent StudioNow would be liable if performing the services of each subprocessor directly under the terms of the Terms. Notwithstanding the above, where StudioNow engages a third party at the explicit direction of StudioNow (e.g., via a Platform integration activated by Company), Company acknowledges and agrees that Company, and not StudioNow, shall be liable for the acts or omissions of such third party.
b. StudioNow shall make available to Company a current list of subprocessors for the Platform upon Company’s written request. StudioNow shall notify Company of any new subprocessor before authorizing that new subprocessor to process Personal Information in connection with Company’s use of the Platform. Company may object to StudioNow’s use of the new subprocessor by notifying StudioNow in writing within ten (10) business days after receipt of StudioNow’s notice. In the event Company objects to the new subprocessor, StudioNow will use commercially reasonable efforts to make available to Company a change in the Platform or Company’s configuration thereof to avoid processing of Personal Information by the objected-to new subprocessor. If StudioNow is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Company may terminate the part of the Platform which cannot be provided by StudioNow without the use of the objected-to new subprocessor by providing written notice to StudioNow.
4. Security. StudioNow shall maintain reasonable and appropriate technical and organizational measures for the protection, confidentiality, and integrity of Personal Information. StudioNow shall regularly monitor compliance with these measures, and shall not materially decrease the overall security of the Platform during its provision of the Platform pursuant to the Terms. StudioNow shall ensure that persons authorized to carry out processing have committed themselves to confidentiality or are under the appropriate statutory obligation of confidentiality.
5. Incident Management and Notification. StudioNow maintains security incident management policies and procedures, and shall notify Company without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Information transmitted, stored, or otherwise processed by StudioNow (a “Data Incident”). StudioNow shall make reasonable efforts to identify the cause of such Data Incident and take steps as StudioNow deems necessary and reasonable in order to remediate the cause of such Data Incident to the extent the remediation is within StudioNow’s reasonable control.
6. Requests and Assistance. StudioNow shall, to the extent legally permitted, promptly notify Company if StudioNow receives a request from an individual, consumer, or data subject to exercise their rights under Applicable Data Protection Law or receives a request or complaint from a supervisory authority or other third party (“Request”). Taking into account the nature of the processing, StudioNow shall reasonably assist Company in the fulfilment of Company’s obligation to respond to the Request, and shall not respond to the Request without written approval from Company. Upon request by Company, StudioNow shall reasonably assist Company as necessary to carry out data protection impact assessments related to Company’s use of the Platform, and in the cooperation or prior consultation with supervisory authorities in the performance of StudioNow’s tasks relating to the data protection impact assessments. To the extent legally permitted, Company shall be responsible for any costs arising from StudioNow’s provision of assistance hereunder. Company acknowledges that StudioNow may not be able to fulfill Requests where doing so would interfere with StudioNow’s ability to comply with applicable law or legal obligation, or protect its rights or those of a third party.
7. Return and Destruction. StudioNow shall return or destroy all Personal Information at Company’s written request, when such Personal Information is no longer needed to provide the Platform, or sixty (60) days following termination of the Terms. StudioNow may retain Personal Information where necessary for StudioNow to comply with applicable law or legal obligation, or protect its rights or those of a third party.
8. Cross-Border Data Transfers. Company acknowledges that Personal Information will be stored and processed in the United States and other countries in which StudioNow or its subprocessors maintain facilities. By using the Platform, Company agrees to the transfer of Personal Information outside of the country in which it was provided. To the extent Personal Information is collected in the United Kingdom or European Union, Company and StudioNow hereby enter into the standard contractual clauses as attached hereto as Annex 1.
9. Audit. StudioNow agrees to submit, to the extent reasonably possible, any facilities where it processes Personal Information for audit to ascertain compliance with this DPA. Such audit shall be carried out upon the reasonable request of Company, with reasonable notice, at reasonable intervals (no greater than once per year), during normal business hours, and subject to the confidentiality provisions set forth in the Terms. Company is responsible for and shall reimburse StudioNow for any expenses associated with the audit. Company must receive written approval from StudioNow, at StudioNow’s own discretion, before using any third party auditor, and such third party auditor must submit to a duty of confidentiality with respect to the audit.
10. Liability. Company’s failure to comply with any of its obligations set forth in this DPA shall be considered a material breach of the Terms. In addition to any indemnification obligations in the Terms, Company agrees to indemnify, defend, and hold harmless StudioNow and its affiliates, subsidiaries, successors and assigns (and their officers, directors, employees, sublicensees, customers and agents) from and against any and all claims, losses, demands, liabilities, damages, settlements, expenses and costs (including attorneys’ fees and costs), arising from, in connection with, or based on allegations of, Company’s failure to comply with any of its obligations set forth in this DPA. To the maximum extent permitted by applicable law, each party’s aggregate liability under this DPA is subject to the limitation of liability in the Terms. Notwithstanding the above, Company’s indemnification obligation herein is not subject to any limitation of liability in the Terms.
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The entity identified as “Company” in the DPA
(the “data exporter”)
The entity identified as “StudioNow” in the DPA
(the “data importer”)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
Mediation and jurisdiction
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
Cooperation with supervisory authorities
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Obligation after the termination of personal data processing services
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties. By you agreeing to the Terms, the parties will be deemed to have signed this Appendix 1.
The data exporter is the entity identified as “Company” in the DPA.
The data importer is the entity identified as “StudioNow” in the DPA.
Data subjects include the data exporter’s personnel, representatives, contractors, partners, vendors, and persons of interest.
Categories of data
The personal data which is processed by the data importer through the data exporter’s use of its services. The data exporter determines the types of data per each service used.
The personal data transferred will be subject to the processing activities required for performance of the services by data importer pursuant to the Terms.
Data importer may use subprocessors in connection with its processing activities for data exporter.
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties. By you agreeing to the Terms, the parties will be deemed to have signed this Appendix 2.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
A. Data importer shall implement appropriate technical and organizational measures to protect personal data against accidental loss, destruction or alteration, unauthorized disclosure or access, or unlawful destruction, including the policies, and procedures and internal controls set forth in this Appendix 2.
B. More specifically, data importer’s technical and organizational measures shall include:
Access Control of Processing Areas
Data importer shall implement appropriate measures to prevent unauthorized persons from gaining access to the data processing equipment (namely telephones, database and application servers and related hardware) where the personal data are processed or used, including:
Access Control to Data Processing Systems
Data importer shall implement appropriate measures to prevent data processing systems where personal data are processed and used from being used by unauthorized persons, including:
Access Control to Use Specific Areas of Data Processing Systems
Data importer shall implement appropriate measures to help ensure that the persons entitled to use data processing system where personal data are processed and used are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that personal data cannot be read, copied or modified or removed without authorization. This shall be accomplished by various measures including:
Data importer shall implement appropriate measures to help ensure that personal data are protected from accidental destruction or loss, including:
Data importer shall implement appropriate measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. This is accomplished by various measures including:
Data importer shall implement appropriate input control measures, including:
Separation of Processing for different Purposes
Data importer shall implement appropriate measures to help ensure that data collected for different purposes can be processed separately, including:
Data importer will keep documentation of technical and organizational measures in case of audits and for the conservation of evidence. Data importer shall implement appropriate measures to help ensure that its employees, agents, and subprocessors are aware of and comply with the technical and organizational measures set forth in this Appendix 2.
Data importer shall implement appropriate measures to monitor access restrictions to data importer’s system administrators and to help ensure that they act in accordance with instructions received. This is accomplished by various measures including: