Data Processing Agreement

This Data Processing Agreement (hereinafter, the “DPA“) is part of Red Points’ service terms and conditions; unless the Client has entered into a superseding written agreement with Red Points, in which case, it forms part of such written agreement (in either case, collectively, the “Agreement“).

This DPA and other provisions of the Agreement are complementary, however, in the event of a conflict, this DPA shall prevail.

EFFECTIVENESS

This DPA shall apply to Personal Data processed on behalf of the Client throughout its use of the Services.

The term of this DPA shall be the same as the term of the Agreement. This means that this DPA shall automatically terminate upon termination of the Agreement or upon prior termination in accordance with the terms of this DPA.

TERMS OF THE DPA

Definitions
Unless otherwise defined herein, all terms beginning with a capital letter which are defined in the Service Terms and Conditions shall have the same meanings herein as therein unless the context hereof otherwise requires.

“Controller“, “Processor“, “Data Subject“, “Processing” and “appropriate technical and organizational measures” “Standard Contractual Clauses“, as used in this DPA, shall have the meanings ascribed to them in the European Data Protection Law.“European Data Protection Law” means: (i) 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 (“GDPR“); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) any applicable national implementation.
“Standard Contractual Clauses or SCC” mean: the standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679, as set out in the European Commission’s Implementing Decision 2021/914 of 4 June 2021 and in Schedule 1, as may be amended, replaced or superseded by the European Commission from time to time.
Scope of data protection law
The Parties acknowledge that European Data Protection Law will only apply to Personal Data that is covered by the definitions contained in such laws.
Identification of the Parties
For the purposes of this DPA:
– Red Pointsshall be considered the Data Processor.
– The Client shall be considered the Data Controller.
Description of the processing and TOMs
A detailed description of the processing to be carried out can be found attached to this DPA as Schedule 1. A list of the applicable security standards can be found in Schedule 2.
Responsibilities of the Controller and Processor
Each Party shall comply with the GDPR and the relevant implementing legislation throughout the processing. In addition, each Party shall comply with the duties to inform provided in the GDPR and relevant legislation. In this sense, the Processor has posted a generic legal text addressed to Potential Infringers to inform them of our processing activities (https://www.redpoints.com/reported-content/).
Provisions regarding the processing by the Processor
In the processing of the Client’s Personal Data, Red Points commits to comply with the European Data Protection Law.The purpose of the data processing shall be exclusively to provide the Services on the terms dictated by the Client. This DPA sets out the nature and purpose of the processing, the types of Personal Data that Red Points will process and the Data Subjects whose Personal Data will be processed. In this regard, the processing will be carried out fulfilling Red Points’ obligations under Article 28 of the GDPR, that is:
a) process Personal Data only in accordance with the Client’s documented instructions (as set out in this DPA or the Agreement, or as directed by you through the Services) for the performance of the Service.
b) by taking the necessary measures in accordance with Article 32 GDPR, in the terms set out in Clause VII of this DPA and as set out in Schedule 2.
c) notifying Client without undue delay if, in our opinion, an instruction to process Personal Data given by Client is in breach of European Data Protection Law;
d) making available all information reasonably requested in order to demonstrate that Red Points’ obligations regarding the appointment of sub-processors have been fulfilled, without prejudice to Clause VI;
e) assisting Client in fulfilling its obligations under Articles 35 and 36 of the GDPR;
f) assisting Client in fulfilling its obligations under Articles 15 to 18 of the GDPR, providing Client with documentation or helping Client to retrieve, correct, delete or block Personal Data;
g) ensuring that Red Points’ personnel who are required to access Personal Data are subject to a binding duty of confidentiality with regard to such Personal Data;
h) Upon termination of the Agreement, Red Points will delete all Personal Data processed and any copy thereof in its possession.Notwithstanding the foregoing, Personal Data blockage during the liability periods as stated under article 32 of LOPDGDD or under any other applicable Union or Member State law may apply.In addition, and on the condition that Client has previously signed a confidentiality and non-disclosure agreement with Red Points:
a) We will allow Client and its authorized representatives to access and review documents to ensure compliance with the terms of this DPA.
b) During the term of the Agreement and as required by European Data Protection Law, we will permit Client and its authorized representatives to conduct audits to ensure compliance with the terms of this DPA. Without prejudice to the foregoing, any such audit shall be conducted during normal business hours with reasonable notice to Red Points and subject to reasonable confidentiality protocols.The scope of any audit shall not obligate Red Points to disclose to Client or its authorized representatives or allow access to:
(i) any data or information of any other Red Points client;
(ii) any Red Points internal accounting or financial information;
(iii) any Red Points trade secrets;
(iv) any information which, in our reasonable opinion, could compromise the security of our systems or facilities; or cause us to breach our obligations under the European Data Protection Law or our security, confidentiality or privacy obligations to any other client of Red Points or any third party; or
(v) any information which Client seeks to access for any reason other than good faith compliance with your obligations under European Data Protection Law and our compliance with the terms of this DPA.
In addition, audits will be limited to once a year, unless Red Points has suffered a security breach in the previous twelve (12) months that has affected Personal Data; or an audit reveals a material breach.
Rights of Data Subjects
If Red Points, as processor, receives notice of any claim, complaint, request, direction, enquiry, investigation, proceeding or other action from any Data Subject, court, regulatory or supervisory authority, or any body, organization or association, which relates in any way to Personal Data processed by Red Points on behalf of the Client, Red Points undertakes to:
– notify the Client of this circumstance so that the Client may comply with the request to the extent that such notification is legally permissible;
– provide the Client with reasonable cooperation and assistance; and
– shall not be liable at its own expense, unless the Client is legally obliged to do otherwise in writing.
Sub-processors
The Client consents to Red Points’ use of the sub-processors listed on Schedule 3. Furthermore, the Client authorizes Red Points to engage additional external sub-processors to process the Client’s Personal Data, provided that:Red Points notifies the Client of the updated list of new sub-processors at least thirty (30) days in advance before allowing them to process Personal Data, thus, giving the Client the opportunity to object to such changes.In the event that the Client objects to the substitution or hiring of a new sub-processor, the Parties shall negotiate in good faith alternative solutions that are commercially reasonable.Red Points requires the new sub-processor to protect the Client’s Personal Data to a standard no less strict than that required by this DPA and European Data Protection Law.Client understands that, by virtue of any confidentiality restrictions that may apply to sub-processors, Red Points may be limited in its ability to disclose sub-processor agreements to Client. In this regard, Red Points undertakes to use all reasonable efforts to require any sub-processor it appoints to allow it to disclose the sub-processor agreement to the Client. Where, despite best efforts, Red Points is unable to disclose a sub-processor agreement to the Client, the Parties agree that, upon the Client’s request, Red Points will provide, on a confidential basis, such information as it reasonably can in connection with such sub-processor agreement to Client.
Security of the processing
Red Points shall implement and maintain appropriate technical and organizational measures to protect Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure, in accordance with this DPA. Such measures shall be proportionate to the harm that could result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of the Personal Data and appropriate to the nature of the Personal Data to be protected. In this sense, Red Points may update the technical and organizational measures, provided that such modifications do not diminish the general level of security.If Red Points becomes aware of and confirms any accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access to Client’s Personal Data (“Security Breach“) that we process in the course of providing the Services we will notify Client without undue delay and in any event no later than 48 hours.In this sense, Red Points responds to the alteration, loss, processing or unauthorized access to the Personal Data due to causes directly and exclusively attributable to the Processor, taking into account the state of the technology, the nature of the Data and the risks to which they are exposed.
Data transfers
It is part of Red Points’ policy to give preference in the contracting of sub-processors to those companies located in the European Economic Area that meet the highest standards of privacy and data protection. Notwithstanding the foregoing, in the event that Red Points processes Personal Data in a country that does not have an adequacy decision (within the meaning of Article 45 GDPR), Red Points will adopt an appropriate transfer mechanism in accordance with the GDPR.If Red Points carries out any international transfer for which the transfer mechanism employed is no longer valid under the GDPR (e.g. as a result of a court ruling, etc.), the Client shall allow Red Points a reasonable period of time to remedy the breach (“Remediation Period”), in order to identify what additional safeguards or other measures can be taken to ensure its compliance with European Data Protection Law.
Miscellaneous
The Client acknowledges and agrees that, as part of the provision of the Services, Red Points is entitled to use data relating to or obtained in connection with the operation, support or use of the Services for its legitimate internal business purposes, such as supporting billing processes, administering the Services, improving, benchmarking and developing products and services, complying with applicable laws (including law enforcement requests), ensuring the security of the Services and preventing fraud or mitigating risk.In relation to Personal Data, Red Points warrants not to use it for its own purposes unless it has aggregated and anonymized the data so that it does not identify the Client or any other person or entity, in particular Authorized Users.This DPA is subject to the applicable law and the terms of jurisdiction of the Agreement.Without limiting the foregoing, to the extent permitted by applicable law, all liability arising under this DPA shall be governed by the limitations of liability (including caps on liability) in the Agreement.In the event that any provision of this DPA is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.

Schedule 1

STANDARD CONTRACTUAL CLAUSES

MODULE TWO: TRANSFER CONTROLLER TO PROCESSOR

AND

MODULE FOUR: TRANSFER PROCESSOR TO CONTROLLER

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 Schedule 2.1 (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 Schedule 2.1 (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 Schedule 2.2.

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;

(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii) Clause 9(a), (c), (d) and (e);

(iv) Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) 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 Schedule 2.2.

Clause 7

Docking clause – Optional

(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 and signing Schedule 2.1.

(b) Once it has completed the Appendix and signed Schedule 2.1, 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 Schedule 2.1.

(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

MODULE 2 – Controller to Processor

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 organizational 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 Schedule 2.2, 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 Schedule 3 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 Schedule 2.2. After the end of the provision of the processing services, the data importer shall, at the choice of the data 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 organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized 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 organizational 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 authorized 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.

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 offenses (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Schedule 3.

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 Union (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 benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate 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 defense 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.

MODULE 4: Processor to Controller

8.1 Instructions

(a) The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.

(b) The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.

(c) The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities.

(d) After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies.

8.2 Security of processing

(a) The Parties shall implement appropriate technical and organizational measures to ensure the security of the data, including during transmission, and protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature of the personal data, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.

(b) The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.

(c) The data exporter shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

8.3 Documentation and compliance

(a) The Parties shall be able to demonstrate compliance with these Clauses.

(b) The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.

Clause 9

Use of sub-processors

a) GENERAL WRITTEN AUTHORIZATION The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least thirty (30) in advance, 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 fulfills 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 fulfill 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

MODULE 2 – CONTROLLER TO PROCESSOR

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 authorized 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 regard, the Parties shall set out in Annex II the appropriate technical and organizational 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.

MODULE 4 – PROCESSOR TO CONTROLLER

The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679.

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 authorized 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, organization 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.

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

MODULE 2: CONTROLLER TO PROCESSOR

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 subprocessor) 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.

MODULE 4: PROCESSOR TO CONTROLLER

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) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.

c) 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.

d) The Parties agree that if one Party is held liable under paragraph (c), 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.

e) The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.

Clause 13

Supervision

MODULE 2: CONTROLLER TO PROCESSOR

a) Where the data exporter is established in an EU Member State: The Spanish supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer will act as competent supervisory authority between the parties.

b) 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 Spanish supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 will act as competent supervisory authority between the parties.

c) 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 behavior is monitored, are located in Spain so the Spanish Data Protection Authority shall act as competent supervisory authority.

d) 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

MODULE 2: CONTROLLER TO PROCESSOR

MODULE 4: PROCESSOR TO CONTROLLER (where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)

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 authorizing 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 authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

(iii) any relevant contractual, technical or organizational 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 fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. 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 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

MODULE 2: CONTROLLER TO PROCESSOR

MODULE 4: PROCESSOR TO CONTROLLER (where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)

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.

(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 authority/ies, 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 supervisory 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 minimization

(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.

(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) [For Module 2: 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]. [For Module 4: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] The data importer shall certify the deletion of the data to the data exporter. 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 the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

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 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

MODULE 2: CONTROLLER TO PROCESSOR

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Spain.

MODULE 4: PROCESSOR TO CONTROLLER

These Clauses shall be governed by the law of a country allowing for third-party beneficiary rights. The Parties agree that this shall be the law of Spain.

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 Barcelona, Spain.

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 court.

MODULE 4: PROCESSOR TO CONTROLLER

Any dispute arising from these Clauses shall be resolved by the courts of Barcelona, Spain.

Schedule 2.1

LIST OF PARTIES

Data exporter(s): CLIENT

Name: as appears in the Master Service Agreement

Address: as appears in the Master Service Agreement

Contact person’s name, position, and contact details: as appears in the Master Service Agreement

Role: Controller

Data importer(s): RED POINTS

Name: RED POINTS SOLUTIONS SL

Address: C/Berlin 38-48, 1º, Barcelona 08029, Spain

Legal Department: legal-department@redpoints.com

Role: Processor

Schedule 2.2

(Description of the processing)

Data Subjects

Personal data refers to signatories of the Agreement as well as the Client’s contact person, employees and, where applicable, Client’s Authorized Users and of potential infringers.

Data categories

Personal Data includes:

a) the signatories’ name, surname, position, identity card, telephone, and address;

b) the Client’s contact personal data, which includes the name, surname, telephone number, e-mail, and position of its personnel;

c) the Client’s Authorized Users identification, which consists of a username and password to access the Software Platform, notwithstanding other data to be processed in the Software Platform as explained and further detailed in the “Client’s Authorized User Data Protection Policy” posted in the Software Platform which is subject to this Clause; and

d) the contact details of the potential infringers in connection with the infringing evidence of the contents found by the bots under the Software Platform, such as their nickname, full name, telephone, address, identification number under a domain, and/or email.

Purpose of processing

The purposes of the Data processing carried out under the Agreement are:

(i) the preparation and execution of the Agreement;

(ii) the performance of the contractual relationship between the Parties; and

(iii) to enable the Authorized Users to access and use the Software Platform.

The processing activities under the Software Platform are carried out for the specific following purposes:

a) Tracking the corresponding websites and marketplaces for possible counterfeits or infringements of the Client’s intellectual property rights, in accordance with the Controller’s instructions provided by the Authorized Users in the Software Platform.

b) Tracking the corresponding websites and marketplaces for breaches of contract terms by the Client’s official sellers, based on information and instructions provided by the Controller.

c) Preparing a list of possible infringements that shall be validated by the Client (via the Authorized Users in the Software Platform), whose rights may be violated by the acts of the alleged infringer.

d) In the event that the Client has indicated the infringement and/or has identified an authorized seller/distributor for the sale of its products or services, such Data will also be processed for further control done in the Software Platform as per Controller’s instructions in connection with the eventual intellectual property infringement and/or to monitor compliance with the distribution and sale conditions agreed between the Client and the seller.

e) Monitoring online activity of the alleged infringer, once validated by the Controller (via the Authorized Users in the Software Platform), in order to identify new infringements of the Client’s intangible assets rights on different e-commerce platforms.

f) Filing claims in the marketplaces or websites where infringements of the Client’s rights are located once these are validated by the Controller for takedown (via the Authorized Users in the Software Platform).

Types of processing

Collection or recording of personal data.
Storage or retention of personal data.
Communication of personal data.
Use of personal data.

The Data processing in the Software Platform and in connection with the retrieving of contact details of the eventual infringers consists of, where applicable, searching for contractual infringements by the Controller’s official sellers, counterfeits, or infringements of the Controller’s intellectual property rights on the Internet websites or domains specified by the Client, such as any particular e-commerce, social network under a domain name, providing a listing that must be validated by the Controller.

EXPLANATION OF APPLICABILITY OF MODULES 2 AND 4

The SCC will apply when there are international transfers between the parties.

Module 2 shall be applicable for the following purposes:
- The preparation and execution of the Agreement

Module 4 shall be applicable for the following purposes:
- The performance of the contractual relationship between the Parties; and
- To enable the Authorized Users to access and use the Software Platform.

Schedule 3

(Applicable security standards)

Access control to premises and facilities

Measures must be taken to prevent unauthorized physical access to premises and facilities containing Personal Data. Measures shall include:

Access control system.
ID reader, magnetic card, chip card.
(Issuance of) keys.
Door locking (electric strikes, etc.).
Registration of exits/entries from the premises.

Controlling access to systems

Measures should be taken to prevent unauthorized access to computer systems. These should include the following technical and organizational measures for user identification and authentication:

Password protocols (including special characters, minimum length, forced password change).
There is no access for guest users or anonymous accounts.
Centralized management of access to the system.
Access to IT systems is subject to approval by HR management and IT system administrators.

Data access control

Measures must be taken to prevent authorized users from accessing data beyond their authorized access rights and to prevent the unauthorized input, reading, copying, deletion, modification or disclosure of data. These measures should include:

Differentiated access rights.
Access rights defined according to functions.
Automated logging of user access through computer systems.
Measures to prevent the use of automated data-processing systems by unauthorized persons using data communication equipment.

Disclosure control

Measures must be taken to prevent unauthorized access, alteration or deletion of data during transfer, and to ensure that all transfers are secure and recorded. These measures shall include:

Mandatory use of encrypted private networks for all data transfers.
Encryption via VPN for remote access, transport and data communication.

Entry control

Measures should be put in place to ensure that all data management and maintenance is recorded, and an audit trail should be kept indicating whether data has been entered, modified or deleted (erased) and by whom.

Measures should include:

Logging of user activities in IT systems
It is possible to verify and establish to which bodies personal data have been or may be transmitted or made available by means of data communication equipment.
That it is possible to verify and establish what personal data have been entered into automated data processing systems and when and by whom;

Control of the order

Measures should be put in place to ensure that data are processed strictly in accordance with the controller’s instructions. These measures should include:

Monitoring the execution of the contract

Availability control

Measures should be put in place to ensure the protection of data against accidental destruction or loss.

These measures should include:

Installed systems can, in case of interruption, be restored.
That systems work and that failures are reported.
Stored personal data cannot be corrupted by a system malfunction.
Uninterruptible Power Supply (UPS).
Business continuity protocols.
Remote storage.
Anti-virus/firewall systems.

Schedule 4

(List of sub-processors)

Processor	Function	Location	Transfer mechanism	GDPR Compliance
Amazon Web Services	Hosting services	Ireland	N/A	https://d1.awsstatic.com/legal/aws-gdpr/AWS_GDPR_DPA.pdf
Salesforce.com, inc.	Customer relationship management platform	USA	SCCs https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/scc-amendment.pdf	https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/data-processing-addendum.pdf
Jira	Customer relationship management platform	Australia	SCCs https://community.atlassian.com/t5/Trust-Security-articles/New-Atlassian-Standard-Contractual-Clauses-SCC/ba-p/1846231	https://www.atlassian.com/legal/data-processing-addendum
G Suite	Email	USA	SCCs https://cloud.google.com/terms/sccs	https://cloud.google.com/terms/data-processing-addendum

Data Processing Agreement

EFFECTIVENESS

TERMS OF THE DPA

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