This Controller-to-Controller Addendum (“CCA”), forms part of the Terms of Service, (the “Agreement”) between Traackr, Inc. (“Traackr”) and you (“Customer”) and shall be effective as of May 25, 2018.
1. EEA Personal Data
In this CCA:
“Agreed Purposes”: means the use of the Traackr Service to be conducted by Customer (in accordance with the Agreement) as permitted by the Data Protection Legislation for which Traackr will provide access to the Shared Personal Data (as defined below) when Customer uses the Traackr Service.
“Notes”: means EU Personal Data of social media influencers whose EU Personal Data is entered into Customer’s Traackr account by Customer, excluding that certain publicly available influencer data for which Traackr is the controller.
“Controller”, “processor”, “data subject”, “personal data”, “processing” and “appropriate technical and organisational measures”: have the meanings given in the Data Protection Legislation in force at the time.
“Data Protection Legislation”: means all applicable privacy and data protection laws including the General Data Protection Regulation (“GDPR”) and any applicable national implementing laws, regulations and secondary legislation in the European Union (and the United Kingdom when it is no longer part of the European Union) relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including but not restricted to the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
“EU Personal Data”: means personal data relating to data subjects located in the European Economic Area (including the United Kingdom as at the date of this DPA) by Traackr solely on behalf of Customer for the purpose of providing the Traackr Service.
“Permitted Recipients”: means the parties to the Agreement and the Users.
“Shared Personal Data”: means the personal data added to the Traackr Service by Traackr and shared with Customer. For the avoidance of doubt, the Shared Personal Data will not include the EU Personal Data, User Data, Notes or any other personal data.
“Traackr Service”: means the online market-research subscription service that allows companies to discover, evaluate and manage their engagement with influential people on the internet, which includes access to Traackr’s market-research database, consisting of aggregated, publicly available data that is indexed, ranked, organized and analyzed using Traackr’s proprietary techniques and algorithms, and includes all of the information and analysis made available to Customer through the Traackr Service.
“User”: means an employee or consultant of Customer who is under the control of Customer and is authorized to use the Traackr Service in accordance with the terms of the Agreement
“User Data”: means EU Personal Data of Users.
1.2 Sharing of Personal Data.
This Section 1 sets out the framework for the sharing of personal data by Traackr to Customer as a controller. Each party acknowledges that the Shared Personal Data will only be shared for the Agreed Purposes. The obligations and liabilities placed on Traackr under this Section 1 shall not apply to any processing by Customer which is beyond the scope of the Agreed Purposes.
1.3 Effect of non-compliance with Data Protection Legislation.
Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within fifteen days of written notice from the other party, give grounds for the other party to terminate the Agreement with immediate effect.
1.4 Cross-border transfers.
The parties hereby enter into the Standard Contractual Clauses for controllers as approved by the European Commission under Decision 2004/915/EC, attached hereto as Exhibit A (the “SCCs”) and made a part of the Agreement in their entirety.
1.5 Customer obligations.
- ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes in accordance with the Data Protection Legislation;
- process the Shared Personal Data only for the Agreed Purposes;
- not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
- ensure that all Permitted Recipients are subject to written contractual obligations (in the case of Users, to the extent that such obligations can be imposed on individuals) concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Section 1;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by Traackr, if reasonably requested, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
- not transfer any personal data received from Traackr outside the EEA unless Customer ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR (ii) there are appropriate safeguards in place pursuant to Article 46 of the GDPR; or (iii) one of the derogations for specific situations in Article 49 of the GDPR applies to the transfer; and
- delete (providing written confirmation of destruction) or return Shared Personal Data and copies thereof to Traackr within sixty (60) days after the end of the provision of the Traackr Service to the Customer, and/or at any time upon Traackr’s request unless required by law to store the personal data, and promptly direct any third parties with whom Customer has shared Shared Personal Data to promptly delete such Shared Personal Data.
1.6 Mutual assistance.
Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation relating to the Shared Personal Data. In particular, each party shall:
- promptly inform the other party about the receipt of any data subject access request in accordance with Article 15 of the GDPR (“subject access request”);
- provide the other party with commercially reasonable assistance in complying with any subject access request;
- not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
- provide all commercially reasonable assistance to the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations, and requests from, supervisory authorities or regulators;
- notify the other party without undue delay on becoming aware of any violation or breach of the Data Protection Legislation, provided that the provision of such notice by the notifying party shall not be construed as an acknowledgment of fault or liability with respect to any such violation or breach;
- use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers; and
- maintain complete and accurate records and information to demonstrate its compliance with this Section 1.
Customer shall indemnify, defend and hold harmless Traackr, its affiliates, officers, directors, employees and agents against any claims, actions, proceedings, expenses, losses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees relating to or arising out of Customer’s violation of this CCA. Notwithstanding anything to the contrary in the Agreement, Customer’s indemnification obligations under this Section 2 shall not be subject to any limitations of liability set forth in the Agreement.
This CCA constitutes an amendment to the Agreement. This CCA, including the SCCs, and the Agreement (including the Data Processing Addendum, incorporated therein by reference) constitute the parties’ entire agreement and understanding with respect to the subject matter hereof. Traackr’s obligations contained in this CCA are subject to any limitations of liability set forth in the Agreement. The obligations contained in this CCA are in addition to the other obligations contained in the Agreement. In the event of a conflict between this CCA and any other terms in the Agreement, the terms of this CCA will govern. For the avoidance of doubt, to the extent that the Agreement excludes any types of information from confidentiality obligations, those exclusions shall not apply to EU Personal Data.
In this CCA, unless a clear contrary intention appears: (a) where not inconsistent with the context, words used in the present tense include the future tense and vice versa and words in the plural number include the singular number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this CCA; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (e) the titles and subtitles used in this CCA are used for convenience only and are not to be considered in construing or interpreting this CCA; (f) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this CCA as a whole and not to any particular Section or Subsection of this CCA; and (g) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term.
Effective as of May 25, 2018. Last updated in May 24, 2018.
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement
Traackr, Inc. (hereinafter “data exporter”)
Customer (hereinafter “data importer”)
each a “party”; together “the parties”.
For the purposes of the clauses:
- “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
- “the data exporter” shall mean the controller who transfers the personal data;
- “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
- “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:
- The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
- It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
- It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
- It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
- It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
- It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
- It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
- It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
- It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
- It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
- At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
- Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
- It will process the personal data, at its option, in accordance with:
- the data processing principles set forth in Annex A.
- It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
- the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
- the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
- data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
- with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
III. Liability and third party rights
- Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
- The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
V. Resolution of disputes with data subjects or the authority
- In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
- The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
- Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
- In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
- In the event that:
- the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
- compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
- the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
- a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
- a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
- Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
- The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
DATA PROCESSING PRINCIPLES
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3.Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and
(ii) (the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
(b) where otherwise provided by the law of the data exporter.
DESCRIPTION OF THE TRANSFER
(To be completed by the parties)
The personal data transferred concern the following categories of data subjects:
Social media influencers
Purposes of the transfer(s)
The transfer is made for the following purposes:
For provision of the Traackr Service by data exporter to data importer.
Categories of data
The personal data transferred concern the following categories of data:
Publicly available personal data about social media influencers which is obtained indirectly via secondary sources such as social media networks and other Internet sources, including without limitation: name, age, affiliated organization (if any), social media handle, messages which the social media influencer has shared publically through social media.
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
Representatives of data importer
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data:
Any personal data that constitutes a special category of data that has been manifestly made public by a social media influencer
Data protection registration information of data exporter (where applicable)
Additional useful information (storage limits and other relevant information)