Authorized Service Providers (Partners)

Authorized Service Provider (ASP) Terms

These Authorized Service Provider Terms (“Terms”), together with your Authorized Service Provider Registration Form (once approved by Digital River), govern the collaborative business relationship between Digital River (“DR”) and “you” (the organization on whose behalf you are agreeing to these Terms) to clarify how you and DR (each a “party” and collectively “us” or “we”) will work together to deliver an eCommerce, marketing or other business solution to clients. THESE TERMS WILL BECOME BINDING UPON BOTH OF US UPON DR’S APPROVAL OF YOUR SERVICE PROVIDER REGISTRATION FORM.

These Terms were last updated on December 16, 2020.

1. Applicability.
   If you submit an Authorized Service Provider Registration Form (“Registration Form”) and it is accepted by DR, these Terms apply for each of us to support one another, collaborate and/or work as a team to deliver a business solution to a common client for whom we each have our own separate agreements and we each perform our own services for the common client. If agreed to separately in an Exhibit, Statement of Work or Business Plan, these Terms may also apply where one party acts as a direct subcontractor to the other with respect to one or more clients.
2. Exhibits.
   Additional Exhibits to these Terms (each, an “Exhibit”), if identified in your accepted Registration Form, will be incorporated into these Terms and will apply to our collaboration. Any conflict between these Terms and an Exhibit will be governed by the terms in the Exhibit as it relates to the collaboration under that Exhibit.
3. Statements of Work / Business Plan.
   Any additional specific business terms or details between us with respect to one or more common clients or projects (such as a party’s specific responsibilities, timing and payment, if any) must be mutually agreed to in a separate Statement of Work (each, an “SOW”) or a separate Business Plan (each, a “Business Plan”), as may be required by an applicable Exhibit, and will become part of these Terms. Any conflict between these Terms and an SOW or Business Plan, other than the indemnity obligations in Section 6, the ownership and intellectual property terms in Section 16, and the limitations on liability in Section 18, will be governed by the terms in the SOW or Business Plan as it relates to the service collaboration under that SOW.
4. Common goal and communication.
   We acknowledge and agree that we share a common goal to support one another to complete our individual scopes of work and minimize the program management effort required by the client. We will communicate in good faith outside the client-orchestrated meetings to ensure both common goals and individual goals are met.
5. Liaison.
   We will each appoint someone who will be responsible to serve as the liaison between us with respect to our collaboration. A party’s liaison will: (i) have day-to-day responsibility for supervising that party’s performance under the collaboration; and (ii) have responsibility for seeking all necessary approvals for any course of action, undertaking, obligation or responsibility in connection with that party’s performance under the collaboration. Each party’s liaisons will be appointed in your registration materials or an applicable SOW or Business Plan, and either party may change its liaison from time to time upon written notice to the other party.
6. We are each responsible for our own work.
   As between us, each of us is fully responsible for our own business, products, services, legal compliance and other responsibilities, including the obligations under our separate agreements with the client, and for our own work efforts, results, trademarks and other intellectual property. Each party agrees to indemnify, defend and hold the other party and its affiliates, officers, directors, agents and employees harmless from and against any claim, and resulting costs, liabilities, losses, damages and expenses, including reasonable attorneys’ fees and costs of any settlement agreed to by a party, (i) brought by a third party that its business, products or services violate any law, rule or regulation or any third party intellectual property rights, or (ii) for its fraud, willful misconduct or gross negligence. To be indemnified, the party seeking indemnity must give the indemnifying party prompt written notice of the claim, reasonable assistance and sole authority to defend and settle the claim.
7. Standards for Training.
   To help promote a successful collaboration, DR requires its authorized service providers to be reasonably knowledgeable about and proficient with DR’s products and services as they relate to our collaboration. You agree to meet DR’s standards for training as required by DR’s Partner Program documentation that DR makes available from time to time.
8. Non-exclusive relationship; Independent Contractors.
   Our relationship is one of non-exclusive, independent contractors to one another. We can each work with other entities for similar or different work or projects. These Terms do not create any partnership, agency, joint venture or employer-employee relationship between us, and neither party may act on behalf of, or create any obligation on behalf of, the other party. Each party is responsible for its own employees, independent contractors and employment expenses and taxes.
9. Publicity and Marks.
   Except as may be set forth in an Exhibit, SOW, Business Plan or approved Registration Form, any press releases or publicity regarding our collaboration, or any other use of the other party’s name, trademarks or logos (“Marks”) in its client lists or otherwise will require the prior written consent of the other party (except if required by law or to comply with any legally required reporting obligations). If one or both of us are entitled under these Terms, an Exhibit, SOW, Business Plan or approved Registration Form to use the other party’s Marks or to promote the other’s products or services, upon notification of any incorrect usage of the Marks or improper promotion of the products or services, the notified party shall promptly correct such usage or promotion as directed.
10. Confidentiality.
    We each understand and agree that in the performance of these Terms, each party may have access to or may be exposed to, directly or indirectly, confidential information of the other party, including, but not limited to, trade secrets, contractual terms, customer information, marketing and business plans and technical information (“Confidential Information”). Each party agrees that: (a) all Confidential Information remains the exclusive property of the disclosing party, and the receiving party shall not use any Confidential Information for any purpose except in furtherance of these Terms; (b) it shall disclose Confidential Information only to those of its employees, contractors, agents and professional advisors who have a need to know such information in furtherance of these Terms (collectively, its “Representatives”); (c) it shall maintain (with at least the same degree of care it uses with its own Confidential Information), and shall use prudent methods to cause its Representatives to maintain, the confidentiality and secrecy of the Confidential Information; (d) it shall not, and it shall use prudent methods to ensure that its Representatives do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all copies of Confidential Information upon request of the other party.Notwithstanding the above, Confidential Information shall not include any information to the extent it (a) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (b) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under these Terms, (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, (d) is independently developed by the receiving party without reference to or use of the disclosing party’s Confidential Information, (e) is released from confidential treatment by written consent of the disclosing party, or (f) is required to be disclosed pursuant to law, court order, subpoena or governmental authority; provided that the receiving party promptly notifies the disclosing party and makes diligent efforts to limit such disclosure to that which is reasonably necessary.
11. Protection of Personal Data.
    We each agree to comply with all applicable data protection and data privacy laws, rules, and regulations as they apply to our respective handling, control of and/or processing of personal data (or similar defined terms under applicable laws). Such responsibilities include obligations (i) to maintain administrative, physical and technical safeguards reasonably designed to prevent the unauthorized access, use or disclosure of personal data, and (ii) to maintain and abide by a privacy policy which clearly describes how personal data will be collected, used, and disclosed, including without limitation all collection, use, and disclosure contemplated for the respective services provided to the client.
12. PCI Data Security / SOC Reports / Audit.
    If a party processes card volume, it shall hold a PCI Data Security Standard (PCI-DSS) certification appropriate for the card volume it processes annually or, if PCI-DSS is superseded, a similar certification under the succeeding standard. Upon request of a party, the other party shall provide a copy of its then-current annual Attestation of Compliance. On an annual basis upon request of a party, the other party shall provide documentation or current audit results that pertain to the collaboration, which may include, as applicable to the collaboration, security and controls documentation/practices, and SOC 1 Type II and SOC 2 Type II reports (which will be the Confidential Information of the providing party). However, if a party does not provide the reasonably requested documentation, audit results or report, then upon reasonable notice, the other party may conduct a reasonable audit to determine such information.
13. Standards of Conduct.
    Each party will at all times conduct itself in a fair and professional manner, in accordance with the highest standards of the industry, and will not by way of any action, inaction, statement or omission, negatively impact the Marks, intellectual property rights, reputation or customer good will of the other party, as determined by the other party. Notwithstanding anything to the contrary herein, any breach of these standards of conduct will constitute immediate grounds for termination and may result in irreparable harm requiring injunctive relief.
14. Representations, Warranties and Covenants.
    Each party represents, warrants and covenants to the other that: (i) it has full right, power and authority to enter into and fully perform its obligations under these Terms, including without limitation the right to bind any party it purports to bind to these Terms (and each person accepting these Terms represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver these Terms on behalf of their organization); (ii) the execution, delivery and performance of these Terms by it does not conflict with any other agreement to which it is a party or by which it is bound; and (iii) it shall comply with all federal, state, local, and foreign laws, rules and regulations applicable to its business and to the performance of its obligations in connection with these Terms.
15. Non-solicitation.
    While these Terms are in effect and for eighteen (18) calendar months thereafter, neither party shall directly or indirectly hire, offer to hire, entice away, solicit, or in any other way persuade or attempt to persuade any employee, officer, agent, or independent contractor of the other party to discontinue their relationship with that other party. Notwithstanding the foregoing, this does not prevent a party from hiring as an employee any person who responds to an advertisement for employment placed in the ordinary course of business by that party and/or who initiates contact with that party without any direct solicitation of that person by that party or any agent of that party. This provision is intended to apply only to the extent necessary to protect the parties against unfair competition. If the scope or enforceability of this provision is in any way disputed at any time, an arbitrator, court or other trier of fact may modify and enforce this provision to the extent it believes to be reasonable under the circumstances.
16. Ownership and Intellectual Property.
    Unless otherwise agreed in an Exhibit, each party retains all of its own rights to its respective Marks, intellectual property, products and services. Neither party shall claim any ownership in the other’s Marks, intellectual property, products or services, and all benefits and rights from the use of a party’s Marks shall inure to the owner of such Marks. The DR software and all modifications thereto and derivatives thereof shall be the sole property of DR.
17. Insurance.
    For so long as these Terms are in effect plus two years after, each of us agrees to maintain insurance coverage with reputable insurance carriers of at least: $1,000,000 per occurrence and $2,000,000 in the aggregate for each of the following – commercial general liability, professional liability/errors and omissions with cyber risk and privacy coverage, and worker’s compensation with statutory limits. A party shall provide the other party with certificates of insurance upon request.
18. Limitations on Liability.
    Except for any indemnification obligations in Section 6 or any payment obligations, the total liability a party may have towards the other under these Terms shall not exceed the amounts (if any) paid and/or to be paid to it under these Terms during the twelve (12) month period prior to the date on which the liability first arose. In no event shall either party be liable to the other for any indirect, special, consequential, reliance, punitive or incidental damages, including without limitation, loss or interruption of business, lost profits or revenue, or access limitations, delays, interruptions or disturbances to a party’s products or services or other similar pecuniary loss, however caused and whether based on contract, negligence, tort or other legal theory, regardless of whether advised of the possibility of such damages. These limitations apply notwithstanding any failure of essential purpose of any limited remedy provided herein.
19. Term and Termination.
    Once you are accepted by DR as an authorized service provider, these Terms and any applicable Exhibits will remain in effect in perpetuity to allow for future collaborations, except that either party may terminate these Terms, any Exhibits or any applicable SOWs and/or Business Plans upon ten (10) days written notice of termination to the breaching party for material breach of these Terms and/or any affected Exhibits, SOWs or Business Plans (as applicable) if such material breach is not cured within such period. In addition, (a) if there are no active SOWs or Business Plans in place, then either party may terminate these Terms and/or any Exhibits upon sixty (60) days written notice of termination for convenience to the other party, and (b) you may terminate these Terms in accordance with Section 20. Upon the expiration or termination of these Terms or an Exhibit, SOW or Business Plan, each party shall discontinue their performance under the Terms and/or the terminated Exhibit(s), SOW(s) and Business Plan(s), as applicable, including all uses of the other’s Marks granted in connection with these Terms or the Exhibit(s), SOW(s) and Business Plan(s), as applicable, and shall, at its expense, promptly return or destroy all copies of the other party’s Confidential Information relating to the terminated Terms and/or Exhibit(s), SOW(s) and Business Plan(s), as applicable. The rights and obligations of Sections 6, 10, 11, 15, 16, 17, 18, this sentence of Section 19 and Sections 21 through 24 of these Terms, and any sections in any Exhibits that are intended to survive, shall survive any termination or expiration of these Terms and/or the terminated Exhibit(s).
20. Modifications.
    From time to time in the course of our business we may modify these Terms and Exhibits and/or our Services. We will provide at least thirty (30) days’ advance notice via electronic posting or e-mail of any material change to these Terms, to the Exhibits or to the Services which we are collaborating on, unless applicable laws or regulatory requirements require us to give earlier notice. If the change materially impairs our relationship, you may terminate these Terms or the affected Exhibit(s), SOW(s) and Business Plan(s) by providing us thirty (30) days advance written notice of your election to terminate, provided that we receive your notice within thirty (30) days of our notice of the upcoming change. Subject to your termination rights in Section 19, your continued participation as an authorized service provider after the effective date of any modification to the Services or these Terms or Exhibits constitutes your acceptance of such modification.
21. Notices.
    Notices sent to either party must be given in writing and will be deemed effective on the date of delivery: to you, at the most recent postal or e-mail address you provided to us in your registration information, or to us, at our corporate office identified on our website, attention General Counsel, when delivered by commercial carrier and evidenced by the delivery receipt.
22. Injunctive Relief.
    Each party acknowledges that its breach of these Terms would cause irreparable injury to the other party for which monetary damages might not be an adequate remedy. Accordingly, a party shall be entitled to seek injunctive relief and other equitable remedies in the event of a breach of these Terms and/or any Exhibit, SOW or Business Plan by the other party, without the necessity of posting a bond in connection therewith. The availability of injunctive relief shall be a cumulative, and not an exclusive, remedy available to a party. If a party breaches any of its covenants or obligations under these Terms and/or any Exhibit, SOW or Business Plan, that party agrees to pay all costs (including reasonable attorneys’ fees and costs) incurred by the other party in enforcing any of the covenants or provisions of these Terms and/or the applicable Exhibit(s), SOW(s) and Business Plan(s).
23. Governing Law.
    If DR’s U.S. entities are parties to these Terms or any Exhibit, SOW or Business Plan, disputes related thereto are governed by the laws of the State of New York, USA, without regard to any conflict of law provisions, and the parties expressly agree to submit to the personal and exclusive jurisdiction of the courts located in Hennepin County, Minnesota, USA for such disputes. If DR’s European entities but not its U.S. entities are parties to these Terms or any Exhibit, SOW or Business Plan, disputes related hereto are governed by the laws of the England and Wales, without regard to any conflict of law provisions, and the parties expressly agree to submit to the personal and exclusive jurisdiction of the courts located in London, England for such disputes.
24. Miscellaneous.
    The approved Registration From, these Terms, and any Exhibit(s), SOW(s) and Business Plan(s) entered into pursuant to these Terms contain the entire agreement of the parties relating to the subject matter hereof, and supersede any previous and contemporaneous agreements and understandings with respect to the subject matter hereof, and may not be amended or modified except by a writing signed by the parties hereto or by DR in accordance with Section 20. To the extent there is any conflict in the approved Registration Form and these Terms, the approved Registration From will control. No provisions in either party’s purchase orders, invoices or other business forms will alter these Terms. If any provision of these Terms is found to be legally unenforceable, that provision will be enforced to the maximum extent possible and any such unenforceability will not prevent enforcement of any other provision of these Terms. All provisions not affected by the invalidity shall remain in full force and effect. No waiver of any provision or breach of these Terms will be effective unless made in writing, nor will it be construed to be a continuing waiver of such provision or breach. The Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Neither party may assign these Terms or delegate its duties hereunder (whether in whole or in part, directly or indirectly, by operation of law or otherwise) without the express prior written consent of the other party, except that a party may assign these Terms without the prior written consent of the other party in connection with a merger or sale of all or substantially all of its assets or equity so long as it provides prompt written notice to the non-assigning party of the change, in which event the non-assigning party may terminate these Terms and any Exhibits, SOWs and Business Plans if the assignment is to a direct competitor of the non-assigning party. Any claim by you or DR for breach of these Terms must be brought within two (2) years of the date the party first learns of the breach or else the claim will be forever barred. No party will be in breach of these Terms if it is unable to perform its obligations (other than any payment obligations) due to conditions beyond its reasonable control, but if the condition remains in effect for more than thirty (30) calendar days (or if the condition causes, or a party believes in good faith it is likely to cause, a violation of applicable law, rule or regulation or a significant economic or liability risk), either party may terminate these Terms and/or the affected Exhibit(s), SOW(s) or Business Plan(s) without cause upon written notice to the other party.

Last updated on July 1, 2020

If our collaboration under an approved Authorized Service Provider Registration Form includes a co-marketing program, then this Exhibit applies to the co-marketing program and is in addition to the Authorized Service Provider Terms. Capitalized terms used in this Exhibit have the same meaning as they do in the Terms.

1. Description of Services.
   Each of us agrees to engage our respective sales teams to develop joint client relationships. Each of our efforts will include key activities such as: engaging in industry marketing and public relations efforts to build awareness of our collaboration; developing and performing demand generation activities such as events and outbound communications; client mapping to see where there are common relationships or potential opportunities; and joint sales calls to present specific solutions to clients and potential clients.
2. Obligations.
   1. Business Plan. We will work together to develop and implement a joint business plan (the “Business Plan”) to ensure the success of the collaboration. We will each strive to complete the Business Plan within sixty (60) days of the date of DR’s acceptance of you as an authorized service provider. This plan may include such items as marketing funds to be spent on joint marketing and global demand generation, desired industry events and website linking opportunities.
   2. Quarterly Business Reviews. Each quarter, we may perform quarterly business reviews to track the progress of our collaboration if requested by one of us.
3. Publicity.
   In accordance with Section 9 of the Terms, neither party may issue any press release regarding the subject matter of this Exhibit without the prior written consent of the other party, which consent shall not be unreasonably withheld. However, the parties agree to collaborate in good faith regarding the issuance of a mutually-agreed press release referring to the relationship of the parties. Each party hereby grants the other party a limited right and license to use, reproduce and distribute the other party’s name and pre-approved trademarks and logos in its client list(s), web site(s), related promotional and marketing materials, tradeshows, industry publications, and other customer-facing presentations. Each Party shall refer to the other party as a “Partner”.

Last updated on June 1, 2020

If you are performing professional services to DR or DR’s clients under an approved Authorized Service Provider Registration Form, then this Exhibit applies to those professional services and this Exhibit is in addition to the Authorized Service Provider Terms. Capitalized terms used in this Exhibit have the same meaning as they do in the Terms.

1. Performance of Professional Services.
   1. Statement of Work. You will enter into a Statement of Work (a “SOW”) with either DR or DR’s client(s) pursuant to which you will perform certain professional services (the “Professional Services”). Where the SOW is entered into by you and DR’s client(s), you will coordinate the development of the SOW with DR. The mutually approved SOW is incorporated into this Exhibit by reference. You are solely responsible for determining the manner, method, time, and resources necessary to perform your Professional Services in accordance with the SOW and industry standards, and you must provide your own equipment, tools, and materials to perform your Professional Services, except as otherwise specified in the SOW.
   2. Compliance with DR policies. If you will access any DR facilities or use any DR Intellectual Property (as defined below) in connection with your performance of the Professional Services, then you acknowledge and agree to comply with any DR policies applicable to your access to the DR facilities or use of any DR Intellectual Property, as such policies may be updated from time to time.
   3. Permitted Subcontractors. You may not subcontract (or otherwise delegate) the performance of the Professional Services without first providing written notice to DR of your intent to subcontract, specifying to whom you intend to subcontract and for what purposes, and providing DR with ten (10) business days to review your notice. If DR does not object in writing to you (an e-mail response from DR to the sender of the notice is sufficient) by the end of its review period, then the subcontractor shall be deemed permitted for the purposes detailed in your notice. You may not subcontract to a person or entity to which DR has timely objected. You shall ensure that any permitted subcontractor is bound by a written non-disclosure agreement governing their access to and use of DR’s Confidential Information on terms no less restrictive than those set forth in Section 10 of the Terms. You are responsible for your permitted subcontractors’ performance and shall be liable for any of their breaches of the Terms, this Exhibit, and the SOW.
   4. Resource Qualifications. You shall assign to perform the Professional Services your employees and permitted subcontractors who have the qualifications and skills necessary to perform the Professional Services, and if any specific qualifications or skills are identified in the SOW, who also have those specific qualifications and skills. You shall also perform a reasonably diligent background check, at least in accordance with industry standards, on your employees and permitted subcontractors who will perform the Professional Services prior to their commencement of the Professional Services under the SOW. You agree you will notify DR of any employee or permitted subcontractor whose background check is not clear, and you shall not assign any such person to perform the Professional Services unless otherwise expressly agreed in writing by DR. If DR reasonably believes any of your employees or permitted subcontractors assigned by you to perform the Professional Services will be unable to complete such services to DR’s reasonable satisfaction, then DR may, upon written or e-mail notice to you, request a replacement of such employee or permitted subcontractor, and upon receipt of such notice you shall promptly assign a replacement resource with substantially similar skills, qualifications and experience to perform the Professional Services at the same rate and or fee as previously agreed in the approved Registration Form or SOW, as applicable.
2. Acceptance of Professional Services.
   You agree that the Professional Services shall conform in all material respects to the specifications set forth in the applicable SOW and DR’s Guidelines and Best Practices, and you agree that DR’s obligation to pay for the Professional Services is subject to DR and/or DR’s client’s review and acceptance, such acceptance not to be unreasonably withheld. DR or DR’s client and their authorized representatives may review, inspect, audit, and/or certify the Professional Services and resulting work product for such compliance, and you shall reasonably cooperate with such efforts. If DR or DR’s client reasonably believes the Professional Services have not been performed in accordance with the SOW and DR’s Guidelines and Best Practices, DR will inform you, and you shall use commercially reasonable efforts to promptly re-perform the Professional Services, at no additional cost to DR, in accordance with DR’s instructions and to DR’s sole and reasonable satisfaction.
3. License Rights.
   1. Definition of Intellectual Property. For purposes of this Exhibit, a party’s “Intellectual Property” means any of its inventions, discoveries, ideas, technology, computer programs, application programming interfaces, templates, formulas, algorithms, source code, techniques, know-how, data, writings, content, documents, designs, methods, platforms, applets, HTML, web pages, procedures, service marks, equipment, merchandise, images, or any of its other patents, trade secrets, or intellectual property or any and all improvements, modifications, derivatives, or components thereof.
   2. License to DR’s Intellectual Property. If you require any rights to any of DR’s Intellectual Property in connection with the performance of the Professional Services, then subject to the Terms and this Exhibit and during the Exhibit or SOW Term, as applicable, DR grants to you and your permitted subcontractors a non-exclusive, non-transferable, royalty-free, license to DR’s Intellectual Property provided to you by DR for your performance of the Professional Services, and only for the sole and exclusive purpose of performing the Professional Services under the SOW. Except for this limited license to DR’s Intellectual Property, you acquire no rights in or to DR’s Intellectual Property and you acknowledge that all right, title and interest in and to DR’s Intellectual Property, whether conceived, developed, acquired, or otherwise obtained prior to or following the Effective Date of this Exhibit or the SOW, shall remain with DR. If a user ID and password is required to access or use DR’s Intellectual Property, you shall be solely responsible for the security and use thereof and shall immediately notify DR in writing if the security of the user ID and/or password is compromised. You shall notify DR in writing within two business days if an individual to whom a user ID has been assigned no longer requires rights to DR’s Intellectual Property, such as, for example, an individual who ceases to be your employee or who is otherwise no longer involved in the performance of the Professional Services.
   3. License to Your Intellectual Property. If DR or DR’s clients require any rights to any of your Intellectual Property in connection with DR’s or DR’s client’s receipt of the Professional Services, then subject to the Terms and this Exhibit and during the Exhibit or SOW Term, you grant to DR and DR’s client a non-exclusive, non-transferable, royalty-free, license to your Intellectual Property as may be necessary for DR or DR’s client(s) to receive the Professional Services under the SOW. Except for this limited license to your Intellectual Property, this Exhibit does not grant to DR or to DR’s client, and DR and DR’s client do not acquire, any rights under this Exhibit in or to your Intellectual Property. DR acknowledges that, as between you and DR, all right, title and interest in and to your Intellectual Property, whether conceived, developed, acquired, or otherwise obtained prior to or following the Effective Date of this Exhibit or the SOW, shall remain with you. In no event shall you install on DR’s computers or systems any software program or data belonging to any third party, or utilize any materials or information belonging to any third party in the performance of the Professional Services, without such third party’s express prior written consent and a right to provide DR and DR’s client the license rights specified in this Section. Notwithstanding the above and for purpose of clarification, if you are developing intellectual property for DR, then the terms of the Intellectual Property Development Exhibit (and not this Section 3.3) apply to such development.
   4. Use of the Intellectual Property. In connection with the license rights granted above, neither party shall: (a) decompile, copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer any licensed Intellectual Property of the other party; (b) license, sublicense, sell, resell, transfer, assign, distribute any licensed Intellectual Property of the other party or otherwise commercially exploit or make the licensed Intellectual Property of the other party available to any third party (except that DR may make your Intellectual Property available to DR’s client(s), as applicable); (c) modify or make derivative works based upon the licensed Intellectual Property of the other party; (d) create Internet “links” or “frame” or “mirror” the licensed Intellectual Property of the other party on any other server or wireless or Internet-based device; (e) interfere with or disrupt the integrity or performance of the licensed Intellectual Property of the other party or the data contained therein; or (f) attempt to gain unauthorized access to the licensed Intellectual Property of the other party or its related systems or networks.
   5. Work Product. You agree that you will not incorporate or permit to be incorporated any of DR’s Intellectual Property into any of your Intellectual Property, or to the outputs, reports, products, or services created in the performance of the Professional Services hereunder (“Work Product”), without DR’s express prior written consent. You further agree that you shall be solely responsible for the support and maintenance of any Work Product created in the performance of the Professional Services hereunder, and that DR does not guarantee that any changes or updates to DR’s Intellectual Property will be compatible with or conform with any Work Product and you shall be liable for any costs associated with any updates or changes to the Work Product as a result of DR’s changes or updates to DR’s Intellectual Property.
4. SOW Term.
   The term of a SOW shall be as set forth in the SOW, and shall remain in effect for such term unless terminated earlier in accordance with the Terms.
5. Fees, Payment Terms and Audit Rights.
   1. Invoicing. You shall provide the Professional Services at the fees set forth in the applicable SOW. Where the SOW is entered into with DR, you must submit your invoices to DR for Professional Services monthly, unless otherwise expressly agreed in the SOW, and DR shall pay an undisputed invoice within forty-five (45) days of DR’s receipt of the invoice. You agree that each invoice submitted to DR must have a purchase order number (“PO Number”) received from DR and that DR will reject any invoice that does not contain a PO Number. Invoices shall be sent to Digital River, Inc. Attn: Accounts Payable, 10380 Bren Road West, Minnetonka, MN 55343 and must reference the DR liaison listed in the SOW, or if none is listed, the DR liaison listed in the approved Registration Form.
   2. Reimbursable Expenses. If a SOW expressly permits reimbursement of expenses by DR incurred in connection with that SOW, you will be reimbursed for those reasonable expenses as described in the SOW that you incurred in connection with the performance of the Professional Services under the SOW that were pre-approved in writing, including by email, by DR, provided you submit documentation of such expenses as DR may reasonably require. Any reimbursable air travel to be performed by you shall be coach-class only.
   3. Proportional Service Fees. Upon the termination of the Terms, this Exhibit or any SOW for any reason other than termination by DR for your uncured breach, you will be paid fees and expenses on a proportional basis as stated in the applicable SOW for work actually performed up to and including the effective date of such termination.
6. Additional Representations, Warranties and Covenants.
   1. Your Representations, Warranties, and Covenants. In addition to the representations, warranties, and covenants in the Terms, you represent, warrant, and covenant that: (a) your Intellectual Property is original to you or that you have secured the rights for DR and/or DR’s client(s) to use your Intellectual Property; (b) your Intellectual Property does not infringe on any patent, trademark, mark rights, copyright, trade secret or other intellectual property or proprietary rights of any third party; (c) you shall not access or use any personally identifiably information collected by DR or DR’s client in connection with the performance of the Professional Services hereunder; and (d) your Intellectual Property does not contain any viruses or other harmful components.
   2. DR’s Representations, Warranties, and Covenants. In addition to the representations, warranties, and covenants in the Terms, DR represents, warrants, and covenants that DR has secured the rights from DR’s client for you or your permitted subcontractor to perform the Professional Services for DR or DR’s client hereunder.

Last updated on December 6, 2020

If you are developing intellectual property for Digital River under an approved Authorized Service Provider Registration Form, then this Exhibit applies to the intellectual property development and this Exhibit is in addition to the Authorized Service Provider Terms. Capitalized terms used in this Exhibit have the same meaning as they do in the Terms.

1. Scope of Work.
   We will mutually agree to one or more Statement(s) of Work (each, an “SOW”) that will set forth the terms and objectives of the project or service contract, and include the scope of work required to meet the objectives, costs, deliverables, timelines, and other expectations. The mutually approved SOW(s) are incorporated into this Exhibit by reference.
2. Preferred Provider Status.
   Digital River, in its discretion and on mutual agreement of the parties, may offer a particular status relative to preferred use of an authorized service provider in performing referral, co-marketing, or professional services related to the IP development work performed by such authorized service provider. Any preferred status, and terms relating to such preferred status, would be set forth in the applicable Statement of Work.
3. Compliance with Digital River policies.
   If you will access any Digital River facilities or use any of Digital River’s intellectual property in connection with the performance of the Services hereunder, then you acknowledge and agree to comply with any Digital River policies applicable to your access to the Digital River facilities or use of Digital River’s intellectual property, as such policies may be updated from time to time. If a user ID and password is required to access or use Digital River’s intellectual property, you shall be solely responsible for the security and use thereof and shall immediately notify Digital River in writing if the security of the user ID and/or password is compromised. You shall notify Digital River in writing within two business days if an individual to whom a user ID has been assigned no longer requires rights to Digital River’s intellectual property, such as, for example, an individual who ceases to be your employee or who is otherwise no longer involved in the performance of the Services.
4. License Rights.
   If you require any rights to any of Digital River’s intellectual property in connection with the performance of your Services under this Exhibit, then subject to the Terms and this Exhibit and during the Exhibit or SOW Term, as applicable, Digital River grants to you and your permitted subcontractors a non-exclusive, non-transferable, royalty-free, license to Digital River’s intellectual property provided to you by Digital River for your performance of the Services, and only for the sole and exclusive purpose of performing the Services under the SOW. Except for this limited license to Digital River’s intellectual property, you acquire no rights in or to Digital River’s intellectual property and you acknowledge that all right, title and interest in and to Digital River’s intellectual property, whether conceived, developed, acquired, or otherwise obtained prior to or following the Effective Date of this Exhibit or the SOW, shall remain with Digital River.
5. Acceptance of Services.
   You agree that the Services shall conform in all material respects to the specifications set forth in the applicable SOW, and you agree that Digital River’s obligation to pay for the Services is subject to Digital River’s review and acceptance, such acceptance not to be unreasonably withheld. If Digital River reasonably believes the Services have not been performed in accordance with the SOW, Digital River will inform you, and you shall use commercially reasonable efforts to promptly re-perform the Services, at no additional cost to Digital River, in accordance with Digital River’s instructions and to Digital River’s sole and reasonable satisfaction.
6. Ownership of Materials.
   Digital River acknowledges that any of your materials listed on Schedule A to the SOW as “Pre-existing” materials that you provide to Digital River pursuant to this Exhibit are your property or the property of your licensors, and that Digital River has no rights in such materials except as set forth in this Exhibit or the applicable SOW. Pre-existing means software, technology or other intellectual property, whether such pre-existing intellectual property is owned by you or a third party, including, without limitation, code written by proprietary software companies or developers in the open source community. To the extent any deliverable under a SOW contains Pre-existing materials, you grant to Digital River a fully paid-up, royalty-free, perpetual, irrevocable, assignable, sublicensable, worldwide right and license to utilize such Pre-existing materials as embodied in such deliverable, and you represent, warrant and covenant that you have all rights necessary to grant such right and license to Digital River.You acknowledge that any Digital River materials provided to you by Digital River in the performance of its obligations under this Exhibit are the property of Digital River or its licensors, and that you have no rights in such materials. Digital River shall not disassemble, decompile, or otherwise reverse engineer (as applicable) any Pre-Existing materials provided by you to Digital River, and you shall not disassemble, decompile, or otherwise reverse engineer (as applicable) any Digital River materials; nor shall either party otherwise attempt to learn the source code or algorithms underlying them. Each party acknowledges that any of the other party’s trademarks are owned and licensed solely and exclusively by that party and agrees to use such trademarks only in the form and with appropriate legends as prescribed by such other party. Neither party shall remove, cover, or modify any proprietary rights notice or legend placed by the other party on materials used in connection with this Exhibit.
7. Assignment of Inventions.
   With respect to any and all work product, contributions, discoveries, concepts or ideas (regardless of whether patented, copyrighted or protected as mask work, and regardless of whether containing or constituting Trade Secrets or Confidential Information), including but not limited to materials, items, processes, methods, formulas and techniques, as well as improvements thereof and any other works made, conceived, or reduced to practice by you in connection with a project or service pursuant to this Exhibit or an SOW under this Exhibit, whether solely or jointly with any of your resources or any other person or organization (collectively “Inventions”), (i) you will promptly make full written disclosure to Digital River, and (ii) you will hold in trust for the sole right and benefit of Digital River, and hereby assign, transfer and convey to Digital River, or its designee, all of your right, title and interest in and to any and all such Inventions, together with all proprietary rights with respect thereto, including without limitation, all rights of copyright, patent, trade secret, trademark, service mark, trade dress, artistic and moral rights, mask rights, character rights, publicity rights, and any and all other proprietary rights of any kind whatsoever relating to such Inventions (collectively, the “Proprietary Rights”). Further, you expressly agree and acknowledge that any original works created by you in the course of performing tasks in connection with a project or service pursuant to this Exhibit have been specially ordered or commissioned by Digital River and constitute “works made for hire” within the meaning of the Copyright Act of the United States, and that Digital River and not you shall be considered to be the author of such works. For purposes of clarification, if you are also performing Professional Services under the Professional Services Exhibit that involve the development of intellectual property, the terms of this Exhibit will control over any conflict with the terms of the Professional Services Exhibit (e.g., Section 3.3 relating to your intellectual property) as they relate to the development of any intellectual property for Digital River, including any Inventions and Proprietary Rights.The foregoing obligations apply to any and all Inventions and related Proprietary Rights, regardless of whether they are created before, during, or after the term of this Exhibit. You will, at Digital River’s request, assist Digital River or Digital River’s designee in every reasonable way to secure Digital River’s rights in the Inventions and Proprietary Rights, including without limitation promptly executing such oaths, declarations, assignments, and all other documents that Digital River deems reasonably necessary to perfect Digital River’s rights in such Inventions and Proprietary Rights, and you will preserve any such Invention as part of the Confidential Information of Digital River. You agree to communicate to Digital River, as promptly and fully as practicable, all Inventions conceived or reduced to practice by you (alone or jointly with others) at any time during the term of this Exhibit and within one (1) year following its termination for any reason whatsoever. You irrevocably designate and appoint Digital River and each of its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf and stead to execute and file any document and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement of Inventions and Proprietary Rights with the same force and effect as if executed and delivered by you.
8. SOW Term.
   The term of an SOW shall be as set forth in the SOW, and shall remain in effect for such term unless terminated earlier in accordance with the Terms or unless terminated by Digital River for convenience upon thirty (30) days’ prior written notice. If Digital River terminates a SOW for convenience, Digital River shall pay you the fee(s) due to you under the SOW as set forth in Section 8.4 below.
9. Fees, Payment Terms and Audit Rights.
   1. Invoicing. You shall provide the Services at the fees set forth in the applicable SOW. You must submit your invoices for Services monthly, unless otherwise expressly agreed in the SOW, and Digital River shall pay an undisputed invoice within forty-five (45) days of Digital River’s receipt of the invoice. You agree that each invoice must have a purchase order number (“PO Number”) received from Digital River and that Digital River will reject any invoice that does not contain a PO Number. Invoices shall be sent to Digital River, Inc. Attn: Accounts Payable, 10380 Bren Road West, Minnetonka, MN 55343 and must reference the Digital River liaison listed in the SOW, or if none is listed, the Digital River liaison listed in the approved Registration Form.
   2. Reimbursable Expenses. If an SOW expressly permits reimbursement of expenses by Digital River incurred in connection with that SOW, you will be reimbursed for those reasonable expenses as described in the SOW that you incurred in connection with the performance of the Services under the SOW that were pre-approved in writing, including by email, by Digital River, provided you submit documentation of such expenses as Digital River may reasonably require. Any reimbursable air travel to be performed by you shall be coach-class only.
   3. Audit Rights. You shall maintain, and will cause any permitted subcontractors to maintain, accurate books and records associated with your or its performance of the Services, including without limitation, timesheets, work specifications, invoices, and receipts. Such records will be maintained for a period of four (4) years following the acceptance of work by Digital River under the applicable SOW. Upon reasonable notice from Digital River to you, Digital River’s authorized representatives or applicable regulatory authority shall have the right, with or by its duly authorized representatives, to review, inspect and audit, at Digital River’s expense, the books, records, data files or other information maintained by you or on your behalf related to the performance of the Services. Such audits may include but may not be limited to, financial documents, billing records, information systems, system security and interviews with your employees or permitted subcontractors. Digital River will keep information disclosed in the course of such review confidential, as provided in the Terms. If, as a result of an audit, Digital River determines that you have overcharged Digital River, Digital River will notify you of the amount of such overcharge and you will promptly pay to Digital River the amount of the overcharge, plus interest calculated at a rate of one and one-half percent (1.5%) per month from the date of receipt by you of the overcharged amount until the date of payment to Digital River, plus the costs associated with the audit.
   4. Proportional Service Fees. Upon the termination of the Terms, this Exhibit or any SOW for any reason other than termination by Digital River for your uncured breach, you will be paid fees and expenses on a proportional basis as stated in the applicable SOW for work actually performed up to and including the effective date of such termination.

Last updated on August 12, 2022

These Data Handling Standards for Authorized Service Providers are in addition to the terms in the Agreement. Words used in these Standards without a definition but with an initial capital letter have the same meaning (i) as defined in these standards in Section 14 “Definitions;” or (ii) as found in the EU General Data Protection Regulation (GDPR); or (iii) as found in the California Consumer Privacy Act (CCPA); or (iv) as found in the Agreement. Where a term in these Data Handling Standards for Authorized Service Providers conflicts with a corresponding term in the Agreement, the term in these Data Handling Standards for Authorized Service Providers will control with respect to the parties’ obligations under these Data Handling Standards for Authorized Service Providers.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be incorporated by reference into the Agreement. Except where the context requires otherwise, references in these Data Handling Standards for Authorized Service Providers to the Agreement are to the Agreement as amended by, and including, these Data Handling Standards for Authorized Service Providers.

1. Background and Purpose. Each party is responsible for complying with any privacy, data security, and Data Protection Legislation that may apply to the handling of Personal Data under the Agreement. These Data Handling Standards for Authorized Service Providers were created to allow Digital River to have an open data sharing arrangement with you. The purpose is to ensure that any transfers of Personal Data between the parties are completed using appropriate safeguards and that each party understands its obligations under Data Protection Legislation. These Data Handling Standards for Authorized Service Providers lay out the obligations of each party, including our respective responsibilities under Data Protection Legislation.
2. Obligations of the Parties. Each party is responsible for ensuring that it processes Personal Data correctly under Data Protection Legislation. Digital River is the Data Controller of the Personal Data. You are Digital River’s Data Processor (or Service Provider as defined by the CCPA) of the Personal Data. In that capacity, you shall process the Personal Data only for the limited and specified purposes set out in the Agreement, and in compliance with Digital River’s documented, lawful instructions.
3. Description of Personal Data and Purpose of Processing. You will process, on behalf of Digital River, the Personal Data of those purchasers that purchase a title, license right, and/or usage right to a product using Digital River Services (“Shopper”) that are protected under Data Protection Legislation. The categories of Personal Data that you process may include, but are not limited to, names, addresses, email addresses, phone numbers, and other related transaction information. The Personal Data will be processed for the following purposes:
   • To ensure performance of your obligations as a Processor under the Agreement,
   • To share the data with third parties and service providers and use Sub-processors for carrying out specific processing activities in a manner consistent with Sections 9(d) and (e) of these Data Handling Standards for Authorized Service Providers.
4. Privacy Policies. For the avoidance of doubt, Digital River’s privacy policy will govern how Digital River will collect and process Personal Data as well as how Digital River will hold its third parties, service providers, and processors accountable for processing on its behalf. Digital River is responsible for fulfilling promises as outlined in its privacy policy, and you are responsible for fulfilling its obligations under these Data Handling Standards for Authorized Service Providers.
5. Security of Personal Data. You agree to take reasonable steps to provide a level of security appropriate to the sensitivity of the information in your control. You represent, warrant and covenant to us that you have implemented technical and organizational security measures, which meet industry best practices and comply with all applicable Data Protection Legislation, to prevent any unauthorized access, use or disclosure of Personal Data, and your processing of Personal Data shall at all times be performed in accordance with such technical and organizational security measures.
6. Security Breach. You will immediately notify Digital River in accordance with applicable law about any actual or reasonably suspected accidental or unauthorized access, loss, use, acquisition, disclosure or Processing of Personal Data (a “Security Breach”). With respect to any Security Breach, you will take all steps reasonably necessary to investigate and remediate the effects of such occurrence, to mitigate any harm to those individuals that are affected or could be affected by such occurrence, prevent the re-occurrence, and comply with applicable law.
7. Remediation or Security Audit. You agree to abide by any and all security guidelines, policies and requirements that Digital River provides to you from time to time (collectively, the “Security Requirements”). Digital River reserves the right to require remediation of any security report qualifications or perform an audit of your security controls. Any audit of your security controls shall be performed upon fourteen (14) calendar days prior written notice to you. Digital River may also make such an audit a precondition of entering into any transaction(s) with you under these Data Handling Standards for Authorized Service Providers. The parties agree to discuss in good faith any issues identified by us in connection with any such audit, including without limitation remediation efforts in such regard; provided however the costs associated with any changes to your infrastructure effectuated by you as a result of such audit will be borne solely by you. You represent and warrant that you have in place a business continuity and disaster recovery plan in writing and shall provide such plan to Digital River upon written request.
8. Transfers of Personal Data Outside of the EEA or United Kingdom. You shall not transfer Personal Data to a territory outside of the EEA or the United Kingdom unless you have taken such measures as are necessary to ensure the transfer is in compliance with applicable law. The parties acknowledge that adequate protection for the Personal Data must exist for any transfer and will, if needed, enter into an appropriate agreement governing such transfer of Personal Data, including, but not limited to Standard Contractual Clauses, taking into account the level of protection of the third country and taking additional steps to guarantee protection, if necessary, unless another appropriate safeguard for the transfer exists. To the extent that that this Agreement involves the transfer of the Personal Data outside of the EEA or United Kingdom, the parties agree that Standard Contractual Clauses shall be incorporated into the Agreement. To that end, for Agreements entered into on or after September 27, 2021, the Standard Contractual Clauses applicable to the transfer of Personal Data outside of the EEA EU Standard Contractual Clauses (https://www.digitalriver.com/legal-other/eu-standard-contractual-clauses-authorized-service-providers/) plus the relevant Privacy Details in the Authorized Service Provider Registration Form shall constitute the completed EU Standard Contractual Clauses and the International Data Transfer Agreement applicable to the transfer of Personal Data outside of the UK Standard Contractual Clauses (https://www.digitalriver.com/legal-other/uk-standard-contractual-clauses-authorized-service-providers/), plus the relevant Privacy Details in the Authorized Service Provider Registration Form shall constitute the completed UK Standard Contractual Clauses. For agreements entered into prior to September 27, 2021, the contractual requirements for the transfer of Personal Data to Processors established in third countries found in the European Commission’s Decision 2010/87/EU of 5 February 2010 plus the Privacy Details in the Authorized Service Provider Registration Form shall constitute Completed Standard Contractual Clauses and shall remain in full force and effect until the parties enter into an amendment adopting new Standard Contractual Clauses. Where and to the extent that the Standard Contractual Clauses apply pursuant to this Clause, if there is any conflict between these Data Handling Standards for Authorized Service Providers and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
9. Processor Obligations. Where you process Personal Data while performing your obligations under the Agreement, you shall act as the Data Processor in accordance with Data Protection Legislation.
   • Purposes. You may use or otherwise process the Personal Data for the duration of the Agreement and only in accordance with Digital River’s documented instructions and in order to fulfil the obligations laid out in the Agreement.
   • Digital River’s Instructions. You will process Personal Data on Digital River’s behalf and will not process Personal Data for any purpose other than providing the Services to Digital River as specified in the Agreement. Without limiting the foregoing, you will not sell the Personal Data. If you are required by law to process the Personal Data in a manner which goes beyond Digital River’s instructions, unless prohibited by law, you will inform Digital River of that legal requirement and seek its written consent before engaging in such processing.
   • Access requests. You must assist Digital River in honoring any data handling requests from individuals exercising their rights under Data Protection Legislation, which rights may include the right to erasure, rectification, withdrawal, restriction of processing, among others. The parties also agree to work in good faith to outline more specific process requirements related to how these requests will be communicated to the other party.
   • Transfer of Personal Data; use of Sub-processors. You shall not engage or transfer data to another processor (“Sub-processor”) for carrying out specific processing activities without first obtaining express written consent from Digital River. Any such transfer must be governed by a written contract that outlines the obligations of the Sub-processor to include: (a) the Sub-processor must satisfy all of the requirements related to privacy and security under the Agreement, including the requirement to provide at least the same level of privacy protection as outlined in Standard Contractual Clauses (or its equivalent protection); (b) the Sub-processor may only process the Personal Data according to the Data Processor’s instructions, which must be consistent with the instructions given to you by Digital River; and (c) you shall remain fully liable to Digital River for the performance of the Sub-processor’s obligations as required by the Agreement and Data Protection Legislation.
   • Consent by Digital River. In relation to the requirement outlined directly above, as of the date of these Data Handling Standards for Authorized Service Providers, Digital River consents to the onward transfer of Personal Data to all Sub-processors used by you provided that, where reasonable, you have previously notified Digital River of such Sub-processors and the Sub-processors are using the Personal Data solely for the limited purposes as described in the Agreement. In the case of this general authorization, you shall inform Digital River of any intended changes concerning the addition or replacement of other Sub-processors, thereby giving Digital River the opportunity to object to such changes.
   • Obligation of Confidentiality. You shall ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
   • Delete or Return Personal Data. At Digital River’s option, you shall delete or return all of the Personal Data to Digital River at the end of the provision of services relating to the Agreement and agree to delete existing copies unless applicable law requires storage of the Personal Data. You must provide Digital River with a written statement of destruction demonstrating your commitment to this section signed by an executive officer or other authorized signatory of your company.
   • Audit Rights. You shall make available to us all information necessary to demonstrate compliance with the obligations laid down in this section and allow for and contribute to audits, including inspections, conducted by Digital River or another auditor mandated by Digital River. In relation, you shall immediately inform Digital River if, in your opinion, an instruction infringes applicable law or other Union or Member State data protection provisions.
10. Liabilities, Indemnification. You agree to be held solely liable for the performance of your obligations under Data Protection Legislation, and any fines imposed by a Supervisory Authority (or its equivalent) for your failure to comply with applicable law shall be paid by you. You shall defend, indemnify and hold harmless Digital River, its corporate affiliates, respective officers, directors, and employees from and against any losses in connection with any claims that Digital River may incur or suffer, which results from, relates to or arises from your use, storage, handling or processing of data even if such incident related to the data is unintended by you or not within your control.
11. Requests from Supervisory Authorities. You agree to cooperate with Digital River where a Supervisory Authority or other governmental request that could impact Digital River, or any other claim that could impact Digital River. Where you receive the request, you shall communicate the request to Digital River expeditiously, and prior to responding to the Supervisory Authority.
12. Survival of these Data Handling Standards for Authorized Service Providers. Regardless of whether the Agreement is terminated or expires, if either party has access to, processes or otherwise retains Personal Data, the parties agree to comply with all applicable requirements under Data Protection Legislation. Therefore, the applicable sections of these Data Handling Standards for Authorized Service Providers that relate to the parties’ obligations under Data Protection Legislation, survives any termination or expiration of the Agreement. To the extent there are no further obligations of the parties under Data Protection Legislation, these Data Handling Standards for Authorized Service Providers will terminate.
13. Applicable Law and Dispute Resolution. These Data Handling Standards for Authorized Service Providers (including the Agreement) constitute the entire agreement between the parties with respect to the subject matter hereof, and these Data Handling Standards for Authorized Service Providers supersede all prior agreements or representations, oral or written, regarding such subject matter. These Data Handling Standards for Authorized Service Providers are governed by the law governing the Agreement, except for where the applicable Standard Contractual Clauses are executed between the parties, which contain specific provisions on the applicable law under the section, “Governing law”.
14. Definitions. The following definitions apply to these Data Handling Standards for Authorized Service Providers:
    • California Consumer Protection Act (CCPA) is the California state statute that created new consumer rights relating to the access to, deletion of, and sharing of personal information which became effective on January 1, 2020 and any subsequent modifications.
    • Controller or Data Controller is the natural or legal person, which alone or jointly with others, determines the purpose and means of the processing of Personal Data. Controller and Data Controller may be used interchangeably.
    • Data Processor is the natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller (as defined above).
    • Data Protection Legislation means any applicable data protection, security, consumer protection and related regulatory and legal obligations, including the GDPR (defined below) the CCPA (defined above), any binding orders issued by relevant bodies, and any subsequent modifications or amendments.
    • General Data Protection Regulation (GDPR) Regulation (EU) 2016/679 is that regulation of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data, which was enforceable as of 25 May 2018 and any subsequent modifications or amendments.
    • Legitimate Interests means that processing is permitted if it is necessary for the purposes of legitimate interests pursued by the controller (or by a third party), except where the controller’s interests are overridden by the interests, fundamental rights or freedoms of the affected Shoppers or other individuals that require protection.
    • Personal Data is any information relating to an identified or identifiable natural person (such as name, an identification number, location data, or online identifier) that is collected during the course of a sales transaction and processed by you.
    • Sell means any activity that qualifies as “sell,” “selling,” “sale,” or “sold,” under the CCPA.
    • Standard Contractual Clauses (Controllers to Processors) are the contractual requirements approved by a relevant authority to ensure the appropriate data protection safeguards are in place in the event of an international transfer of Personal Data to Processors.
    • Supervisory Authority (or its equivalent) is the authority to whom Shoppers or other individuals may lodge a complaint.

Last updated on December 6, 2020

If you are developing an integration into Digital River’s Global Seller Services using Digital River’s Application Integration Program under an approved Authorized Service Provider Registration Form, then this Exhibit applies to the integration development and this Exhibit is in addition to the Authorized Service Provider Terms. Capitalized terms used in this Exhibit have the same meaning as they do in the Terms.

1. Scope of Work.
   We will mutually agree to one or more Statement(s) of Work (each, an “SOW”) that will set forth the terms and objectives of the integration development, and include the scope of work required to meet the objectives, costs, deliverables, timelines, and other expectations. The mutually approved SOW(s) are incorporated into this Exhibit by reference.
2. Compliance with Digital River policies.
   If you will access any Digital River facilities or use any of Digital River’s intellectual property in connection with the performance of the Services hereunder, then you acknowledge and agree to comply with any DIGITAL RIVER policies applicable to your access to the Digital River facilities or use of Digital River’s intellectual property, as such policies may be updated from time to time. If a user ID and password is required to access or use Digital River’s intellectual property, you shall be solely responsible for the security and use thereof and shall immediately notify Digital River in writing if the security of the user ID and/or password is compromised. You shall notify Digital River in writing within two business days if an individual to whom a user ID has been assigned no longer requires rights to Digital River’s intellectual property, such as, for example, an individual who ceases to be your employee or who is otherwise no longer involved in the performance of the Services.
3. License Rights.
   If you require any rights to any of Digital River’s intellectual property in connection with the development of your integration under this Exhibit, then subject to the Terms and this Exhibit and during the Exhibit or SOW Term, as applicable, Digital River grants to you and your permitted subcontractors a non-exclusive, non-transferable, royalty-free, license to Digital River’s intellectual property provided to you by Digital River for your integration development, and only for the sole and exclusive purpose of developing your integration under the SOW. Except for this limited license to Digital River’s intellectual property, you acquire no rights in or to Digital River’s intellectual property and you acknowledge that all right, title and interest in and to Digital River’s intellectual property, whether conceived, developed, acquired, or otherwise obtained prior to or following the Effective Date of this Exhibit or the SOW, shall remain with Digital River.
4. Digital River API.
   The Digital River API is an application programming interface that provides you with the ability to integrate into Digital River’s Global Seller Services. Digital River updates and maintains the Digital River API according to Digital River’s business plans and priorities; this agreement in no way represents a commitment by Digital River to plan or prioritize any features in the Digital River API at your request. Digital River will make all professional efforts to ensure that the Digital River API is free from substantial defect and functions as documented at docs.digitalriver.com.
5. SDK Technology.
   SDK Technology is built by Digital River using the Digital River API and related services. We will provide you with access to our SDK Technology, which may include applicable helper libraries, sample code, test cases, and documentation for your integration. SDK Technology is provided for your reference as a base from which to develop code for your integration with our Global Seller Services. Your use of the SDK Technology is optional. The SDK Technology is provided on an “as is” basis. We make no warranty of any kind that the SDK Technology, or any code or integration developed or derived from the SDK Technology, will meet your or any other third party’s requirements, achieve any intended result, be compatible or work with any software, system, or other services or be secure, accurate, complete, free of harmful code or error free. Digital River has no obligation to modify, fix, correct, update, enhance, or otherwise maintain any SDK Technology or any code or integration developed or derived from SDK Technology.
6. Integration Standards.
   You must comply with Digital River’s Integration Standards. The Integration Standards and related documentation will be provided to you as described in the SOW. The standards include specific requirements for the implementation of the Digital River API that will be applicable to all implementations of the integration’s use by third parties.
7. Certification of Integration.
   Upon completion of your integration, you must submit the integration to Digital River for certification review. Your submission will not be accepted for review without your written representation that you have complied with Digital River’s Integration Standards. Digital River will review each integration with reasonable cooperation and assistance from you. Digital River will determine, in its sole discretion, whether any integration should be considered a certified integration. Should Digital River certify an integration, you must maintain the integration in accordance with Digital River’s certification requirements for the duration of the certification or your integration may be decertified.
8. Quality Control.
   All integrations are subject to code review, audits, performance checks and other quality-control mechanisms. You agree to perform regression testing and upgrade your integration if necessary before any major, minor or patch release of Digital River’s Global Seller Services or the Digital River API though which your integration connects with Digital River’s Global Seller Services. You will make all professional efforts to ensure that your integration is kept up to date. In addition, within ninety (90) days, or an otherwise agreed-upon time period, of any release of Digital River’s Global Seller Services or the API though which your integration connects with Digital River’s Global Seller Services, you must submit an updated version of your integration for re-certification. Digital River will provide ninety (90) days advance notice to you of any release which Digital River anticipates will require submission of an updated version of the integration. Absent extenuating circumstances, Digital River may terminate this Exhibit if your products or services do not meet Digital River’s compatibility standards. Digital River and you will work in good faith to address any Digital River compatibility issues in the case of extenuating circumstances.
9. Integration Ownership.
   Digital River acknowledges that between us and you, you own all rights to the integration. You agree that the integration does not infringe on any intellectual property right of any third party or any applicable law or regulation, and will not contain any material from a third party, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to distribute the material.
10. Support and Maintenance.
    You are solely responsible for all customer support, maintenance, upgrades, bug fixes, or other changes made by you or a third party to your integration. Digital River is not responsible for any guarantees, warranties, service level agreements, professional services, or other representations you make to a third party. Digital River assumes responsibility for the underlying Digital River API only.
11. DIGITAL RIVER’s Use of the Integration.
    You grant Digital River a worldwide, non-exclusive, royalty-free, sublicenseable right during the Term to develop and test the integration.
12. SOW Term.
    The term of an SOW shall be as set forth in the SOW, and shall remain in effect for such term unless terminated earlier in accordance with the Terms or unless terminated by Digital River for convenience upon thirty (30) days’ prior written notice. If Digital River terminates a SOW for convenience, Digital River shall pay you the fee(s) due to you under the SOW as set forth in Section 13.4 below.
13. Fees, Payment Terms and Audit Rights.
    1. Invoicing. You shall provide the Services at the fees set forth in the applicable SOW. You must submit your invoices for Services monthly, unless otherwise expressly agreed in the SOW, and Digital River shall pay an undisputed invoice within forty-five (45) days of Digital River’s receipt of the invoice. You agree that each invoice must have a purchase order number (“PO Number”) received from Digital River and that Digital River will reject any invoice that does not contain a PO Number. Invoices shall be sent to Digital River, Inc. Attn: Accounts Payable, 10380 Bren Road West, Minnetonka, MN 55343 and must reference the Digital River liaison listed in the SOW, or if none is listed, the Digital River liaison listed in the approved Registration Form.
    2. Reimbursable Expenses. If an SOW expressly permits reimbursement of expenses by Digital River incurred in connection with that SOW, you will be reimbursed for those reasonable expenses as described in the SOW that you incurred in connection with the performance of the Services under the SOW that were pre-approved in writing, including by email, by Digital River, provided you submit documentation of such expenses as Digital River may reasonably require. Any reimbursable air travel to be performed by you shall be coach-class only.
    3. Audit Rights. You shall maintain, and will cause any permitted subcontractors to maintain, accurate books and records associated with your or its performance of the Services, including without limitation, timesheets, work specifications, invoices, and receipts. Such records will be maintained for a period of four (4) years following the acceptance of work by Digital River under the applicable SOW. Upon reasonable notice from Digital River to you, Digital River’s authorized representatives or applicable regulatory authority shall have the right, with or by its duly authorized representatives, to review, inspect and audit, at Digital River’s expense, the books, records, data files or other information maintained by you or on your behalf related to the performance of the Services. Such audits may include but may not be limited to, financial documents, billing records, information systems, system security and interviews with your employees or permitted subcontractors. Digital River will keep information disclosed in the course of such review confidential, as provided in the Terms. If, as a result of an audit, Digital River determines that you have overcharged Digital River, Digital River will notify you of the amount of such overcharge and you will promptly pay to Digital River the amount of the overcharge, plus interest calculated at a rate of one and one-half percent (1.5%) per month from the date of receipt by you of the overcharged amount until the date of payment to Digital River, plus the costs associated with the audit.
    4. Proportional Service Fees. Upon the termination of the Terms, this Exhibit or any SOW for any reason other than termination by Digital River for your uncured breach, you will be paid fees and expenses on a proportional basis as stated in the applicable SOW for work actually performed up to and including the effective date of such termination.
14. Mutual Prospects or Customers (Brands).
    You understand that Digital River must ensure that its obligations, including regulatory obligations, related to online sales of products offered for sale through GSS are met. You further understand that access by a Brand to a production license of Digital River’s Global Seller Services requires that the Brand execute a contract with Digital River and complete Digital River’s onboarding process. You understand that without the completion of these requirements to Digital River’s satisfaction, Digital River will not grant a production license to the Brand.

Last updated on December 6, 2020

If our collaboration under an approved Authorized Service Provider Registration Form includes a customer referral program, then this Exhibit applies to the customer referral program and is in addition to the Authorized Service Provider Terms. Capitalized terms used in this Exhibit have the same meaning as they do in the Terms.

1. Referral Services.
   1. Each Party May Refer Potential Clients. Each party (for purposes of this Exhibit a “Referring Party”) may refer to the other party (for purposes of this Exhibit, a “Servicing Party”) certain persons, organizations and/or entities that may be interested in using the Servicing Party’s products or services (each, a “Potential Client”).
   2. Information Accompanying Introductions to Potential Clients. For each Potential Client, the Referring Party shall provide the Servicing Party (via email to an address specified by the Servicing Party or by such other means as the Servicing Party may reasonably specify, e.g., through a portal) with, at a minimum, the following information: Potential Client Name, Contact Name, Contact Email, and Contact Phone Number (the date on which such information is received by the Servicing Party shall be referred to as an “Introduction”).
   3. Review Period. Servicing Party shall, within thirty (30) calendar days of its receipt of an Introduction (the “Review Period”), notify the Referring Party if a Potential Client is a Qualified Sales Opportunity as defined in the Registration Form. Referring Party will actively collaborate during the Review Period to provide additional information or details that may be needed to determine if a Potential Client meets the criteria of a Qualified Sales Opportunity.
   4. Provision of Co-Selling Support. Each Party will provide the other with commercially reasonable efforts to assist each other in the sale of the other’s services (“Co-Selling Support”) for any Qualified Sales Opportunity, based on a mutually agreed plan for engagement and pursuit of the Qualified Sales Opportunity.
   5. Servicing Party’s Negotiations with Qualified Sales Opportunity. Each Party, as a Referring Party represents, warrants and covenants to the other Party, as a Servicing Party that it shall (a) not make any commitment or representation, express or implied, on Servicing Party’s behalf regarding the Servicing Party’s products or services unless such statements have been expressly authorized by Servicing Party in writing or are contained in sales and marketing materials given to it by Servicing Party; or (b) not enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, Servicing Party. Servicing Party shall be solely responsible for presenting agreements to, and negotiating agreements with, a Qualified Sales Opportunity concerning a business relationship between Servicing Party and a Qualified Sales Opportunity.
2. Referral Fees.
   1. Referral Fees for Qualified Sales. If Servicing Party executes an agreement with a Qualified Sales Opportunity for the purchase or use of Servicing Party’s products or services (a “Customer Agreement”) within the term of this Exhibit as specified in the Registration Form and a period of six (6) months from the date of the Introduction , then the Referring Party will receive a Qualified Sales Fee based upon the Qualified Sales Fee Basis and the Incentive Fee, as defined in the Registration Form.
   2. Referral Fee Period. The Qualified Sales Fee shall be payable by Servicing Party to Referring Party during the shorter of (a) a period of five (5) years beginning on the date of the initial Qualified Sale for that Qualified Sales Opportunity (the “Tail Period”), or (b) the term of the Customer Agreement if terminated prior to such Tail Period.
   3. Referral Fee Limitations. Each Referring Party acknowledges and agrees that it will not be entitled to any Qualified Sales Fee (i) for any business arrangement entered into between Servicing Party and the Potential Client that is not the direct result of Co-Selling Support by the Referring Party to the Potential Client, (ii) for revenue actually earned by Servicing Party under a Customer Agreement after the end of the Referral Fee Period, (iii) for sales of additional products or services pursuant to any subsequent agreement entered into between a Qualified Sales Opportunity and Servicing Party or any of its affiliates, or (iv) in excess of the maximum amount referenced in the Registration Form.
   4. Referral Fee Payments. Within forty-five (45) days after the end of each calendar quarter that Servicing Party received payment from the Qualified Sale under the Customer Agreement during the Referral Fee Period, Servicing Party will calculate the Qualified Sales Fees due to the Referring Party which accrued during that calendar quarter, and shall pay the Qualified Sales Fees to the Referring Party in United States Dollars within forty-five (45) calendar days following the end of that calendar quarter. Referring Party is solely responsible for the payment of any taxes on Referral Fees received from Servicing Party.
3. Other Referral Terms
   1. Audit Rights. Servicing Party will maintain accurate accounting books and records relating to the amounts paid pursuant to Customer Agreements, and the calculation of Qualified Sales Fees. Referring Party shall have the right to conduct an audit of such books and records upon reasonable prior notice to Servicing Party. Any such audit may be conducted by Referring Party’s employees at Servicing Party’s corporate headquarters during normal business hours. In the event that an audit discloses an underpayment to Referring Party, Servicing Party shall pay Referring Party the amount of such underpayment. In the event such an audit discloses an underpayment which is greater than two percent (2%) of the total amounts paid to Referring Party during the audit period, then Servicing Party shall also reimburse Referring Party for the reasonable costs of such audit for which appropriate supporting documentation is provided in writing to Servicing Party by Referring Party, otherwise Referring Party shall be solely responsible for the costs of such audit.
   2. Annual Review. Qualified Fees are subject to annual review by the Servicing Party.
   3. Qualified Sales Fees upon Termination. If this Exhibit terminates for any reason other than a Referring Party’s uncured breach of the Terms, any Exhibits, SOWs or Business Plans, then the Servicing Party agrees to continue to pay the applicable Referral Fees to the Referring Party until the end of any Referral Fee Period(s) still in effect at the time of such termination.
   4. Referral Fees upon Termination. If this Exhibit terminates for any reason other than a Referring Party’s uncured breach of the Terms, any Exhibits, SOWs or Business Plans, then the Servicing Party agrees to continue to pay the applicable Referral Fees to the Referring Party until the end of any Referral Fee Period(s) still in effect at the time of such termination, plus any applicable Referral Fees in accordance with Section 2.1 for Eligible Prospects introduced prior to termination who become Converted Customers after such termination.

STANDARD CONTRACTUAL CLAUSES

controller to processor

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 Annex I.A. (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 Annex I.A. (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 Annex I.B.

(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 Annex I.B.

Clause 7

Docking clause

(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 the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, 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 Annex I.A.

(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

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 organisational 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 Annex I.B, 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 Annex II 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 Annex I.B. 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 organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised 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 organisational 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 authorised 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 offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

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[1] (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 benefitting 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 defence 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.

Clause 9

Use of sub-processors

(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation 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 14 days 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.[2] The Parties agree that, by complying with this Clause, the data importer fulfils 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 fulfil 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

(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 authorised 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 organisational 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.

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 authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body[3] at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.]

(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, organisation 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

(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 sub- processor) 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.

Clause 13

Supervision

(a) 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 behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) 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

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 authorising 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 authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards[4];

(iii) any relevant contractual, technical or organisational 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 fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational 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

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) 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. 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

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 Ireland.

Clause 18

Choice of form 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 Ireland.

(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 courts.

Appendix

Annex I

A. List of Parties

Data exporter(s) [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

1. Name: See Authorized Service Provider Registration Form

Address: See Authorized Service Provider Registration Form

Contact person’s name, position and contact details: See Authorized Service Provider Registration Form

Activities relevant to the data transferred under these Clauses: See Authorized Service Provider Registration Form

Signature and date: See Authorized Service Provider Registration Form

Role (controller/processor): See Authorized Service Provider Registration Form

Data importer(s) [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

1. Name: See Authorized Service Provider Registration Form

Address: See Authorized Service Provider Registration Form

Contact person’s name, position and contact details: See Authorized Service Provider Registration Form

Activities relevant to the data transferred under these Clauses: See Authorized Service Provider Registration Form

Signature and date: See Authorized Service Provider Registration Form

Role (controller/processor): See Authorized Service Provider Registration Form

B. Description of transfers

Categories of data subjects whose personal data is transferred

• Shoppers who have purchased our mutual Client’s products from Digital River as authorized reseller.

Categories of personal data transferred

• Contact and order information for Shoppers that have purchased our mutual Client’s products from Digital River, such as First and last name, Title, Position, Employer, email, phone, address, etc.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

• No sensitive data is transferred.  The parties agree that payment information (e.g., purchaser payment account information, including but not limited to, credit/debit card number, account and routing number, card expiration date, and card verification code or value) is not necessary for you to comply with your obligations under the Agreement. As such, it will not be transferred to or processed by you.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

• Continuous for the duration of the agreement.

Nature of the processing

• Processing necessary to provide Shopper with products they purchased using Digital River Solutions, as described in the Agreement.

Purpose(s) of the data transfer and further processing

• To provide Shopper with products they purchased using Digital River Solutions and to ensure the performance of the parties’ obligations under the Agreement.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

• Personal Data will be deleted upon the request of Digital River.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

• See above.

C. Competent supervisory authority

Identify the competent supervisory authority/ies in accordance with Clause 13

• Irish Data Protection Commission

Annex II

Technical and organizational measures including technical and organizational measures to ensure the security of the data

EXPLANATORY NOTE:

The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer / set of transfers.

See Authorized Service Provider Registration Form

[1] The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

[2]  This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

[3]  The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.

[4]  As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

UK Standard Contractual Clauses – Controller to Processor

International Data Transfer Agreement

Version A1.0 in force 21 March 2022

This IDTA has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Table 1: Parties and signatures

Table 2: Transfer Details

Table 3: Transferred Data

Table 4: Security Requirements

Part 2: Extra Protection Clauses

Part 3: Commercial Clauses

Part 4: Mandatory Clauses

Information that helps you to understand this IDTA

1. This IDTA and Linked Agreements
1.1 Each Party agrees to be bound by the terms and conditions set out in the IDTA, in exchange for the other Party also agreeing to be bound by the IDTA.

1.2 This IDTA is made up of:

1.2.1 Part one: Tables;
1.2.2 Part two: Extra Protection Clauses;
1.2.3 Part three: Commercial Clauses; and
1.2.4 Part four: Mandatory Clauses.

1.3 The IDTA starts on the Start Date and ends as set out in Sections 29 or 30.

1.4 If the Importer is a Processor or Sub-Processor instructed by the Exporter: the Exporter must ensure that, on or before the Start Date and during the Term, there is a Linked Agreement which is enforceable between the Parties and which complies with Article 28 UK GDPR (and which they will ensure continues to comply with Article 28 UK GDPR).

1.5 References to the Linked Agreement or to the Commercial Clauses are to that Linked Agreement or to those Commercial Clauses only in so far as they are consistent with the Mandatory Clauses.

2. Legal Meaning of Words

2.1 If a word starts with a capital letter it has the specific meaning set out in the Legal Glossary in Section 36.

2.2 To make it easier to read and understand, this IDTA contains headings and guidance notes. Those are not part of the binding contract which forms the IDTA.

3. You have provided all the information required

3.1 The Parties must ensure that the information contained in Part one: Tables is correct and complete at the Start Date and during the Term.

3.2 In Table 2: Transfer Details, if the selection that the Parties are Controllers, Processors or Sub-Processors is wrong (either as a matter of fact or as a result of applying the UK Data Protection Laws) then:

3.2.1 the terms and conditions of the Approved IDTA which apply to the correct option which was not selected will apply; and
3.2.2 the Parties and any Relevant Data Subjects are entitled to enforce the terms and conditions of the Approved IDTA which apply to that correct option.

3.3 In Table 2: Transfer Details, if the selection that the UK GDPR applies is wrong (either as a matter of fact or as a result of applying the UK Data Protection Laws), then the terms and conditions of the IDTA will still apply to the greatest extent possible.

4. How to sign the IDTA

4.1 The Parties may choose to each sign (or execute):

4.1.1 the same copy of this IDTA;
4.1.2 two copies of the IDTA. In that case, each identical copy is still an original of this IDTA, and together all those copies form one agreement;
4.1.3 a separate, identical copy of the IDTA. In that case, each identical copy is still an original of this IDTA, and together all those copies form one agreement,
unless signing (or executing) in this way would mean that the IDTA would not be binding on the Parties under Local Laws.

5. Changing this IDTA

5.1 Each Party must not change the Mandatory Clauses as set out in the Approved IDTA, except only:

5.1.1 to ensure correct cross-referencing: cross-references to Part one: Tables (or any Table), Part two: Extra Protections, and/or Part three: Commercial Clauses can be changed where the Parties have set out the information in a different format, so that the cross-reference is to the correct location of the same information, or where clauses have been removed as they do not apply, as set out below;
5.1.2 to remove those Sections which are expressly stated not to apply to the selections made by the Parties in Table 2: Transfer Details, that the Parties are Controllers, Processors or Sub-Processors and/or that the Importer is subject to, or not subject to, the UK GDPR. The Exporter and Importer understand and acknowledge that any removed Sections may still apply and form a part of this IDTA if they have been removed incorrectly, including because the wrong selection is made in Table 2: Transfer Details;
5.1.3 so the IDTA operates as a multi-party agreement if there are more than two Parties to the IDTA. This may include nominating a lead Party or lead Parties which can make decisions on behalf of some or all of the other Parties which relate to this IDTA (including reviewing Table 4: Security Requirements and Part two: Extra Protection Clauses, and making updates to Part one: Tables (or any Table), Part two: Extra Protection Clauses, and/or Part three: Commercial Clauses); and/or
5.1.4 to update the IDTA to set out in writing any changes made to the Approved IDTA under Section 5.4, if the Parties want to. The changes will apply automatically without updating them as described in Section 5.4;
provided that the changes do not reduce the Appropriate Safeguards.

5.2 If the Parties wish to change the format of the information included in Part one: Tables, Part two: Extra Protection Clauses or Part three: Commercial Clauses of the Approved IDTA, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

5.3 If the Parties wish to change the information included in Part one: Tables, Part two: Extra Protection Clauses or Part three: Commercial Clauses of this IDTA (or the equivalent information), they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

5.4 From time to time, the ICO may publish a revised Approved IDTA which:

5.4.1 makes reasonable and proportionate changes to the Approved IDTA, including correcting errors in the Approved IDTA; and/or
5.4.2 reflects changes to UK Data Protection Laws.
The revised Approved IDTA will specify the start date from which the changes to the Approved IDTA are effective and whether an additional Review Date is required as a result of the changes. This IDTA is automatically amended as set out in the revised Approved IDTA from the start date specified.

6. Understanding this IDTA

6.1 This IDTA must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.

6.2 If there is any inconsistency or conflict between UK Data Protection Laws and this IDTA, the UK Data Protection Laws apply.

6.3 If the meaning of the IDTA is unclear or there is more than one meaning, the meaning which most closely aligns with the UK Data Protection Laws applies.

6.4 Nothing in the IDTA (including the Commercial Clauses or the Linked Agreement) limits or excludes either Party’s liability to Relevant Data Subjects or to the ICO under this IDTA or under UK Data Protection Laws.

6.5 If any wording in Parts one, two or three contradicts the Mandatory Clauses, and/or seeks to limit or exclude any liability to Relevant Data Subjects or to the ICO, then that wording will not apply.

6.6 The Parties may include provisions in the Linked Agreement which provide the Parties with enhanced rights otherwise covered by this IDTA. These enhanced rights may be subject to commercial terms, including payment, under the Linked Agreement, but this will not affect the rights granted under this IDTA.

6.7 If there is any inconsistency or conflict between this IDTA and a Linked Agreement or any other agreement, this IDTA overrides that Linked Agreement or any other agreements, even if those agreements have been negotiated by the Parties. The exceptions to this are where (and in so far as):

6.7.1 the inconsistent or conflicting terms of the Linked Agreement or other agreement provide greater protection for the Relevant Data Subject’s rights, in which case those terms will override the IDTA; and

6.7.2 a Party acts as Processor and the inconsistent or conflicting terms of the Linked Agreement are obligations on that Party expressly required by Article 28 UK GDPR, in which case those terms will override the inconsistent or conflicting terms of the IDTA in relation to Processing by that Party as Processor.

6.8 The words “include”, “includes”, “including”, “in particular” are used to set out examples and not to set out a finite list.

6.9 References to:

6.9.1 singular or plural words or people, also includes the plural or singular of those words or people;
6.9.2 legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this IDTA has been signed; and
6.9.3 any obligation not to do something, includes an obligation not to allow or cause that thing to be done by anyone else.

7. Which laws apply to this IDTA

7.1 This IDTA is governed by the laws of the UK country set out in Table 2: Transfer Details. If no selection has been made, it is the laws of England and Wales. This does not apply to Section 35 which is always governed by the laws of England and Wales.

How this IDTA provides Appropriate Safeguards

8. The Appropriate Safeguards

8.1 The purpose of this IDTA is to ensure that the Transferred Data has Appropriate Safeguards when Processed by the Importer during the Term. This standard is met when and for so long as:

8.1.1 both Parties comply with the IDTA, including the Security Requirements and any Extra Protection Clauses; and
8.1.2 the Security Requirements and any Extra Protection Clauses provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach, including considering any Special Category Data within the Transferred Data.

8.2 The Exporter must:

8.2.1 ensure and demonstrate that this IDTA (including any Security Requirements and Extra Protection Clauses) provides Appropriate Safeguards; and
8.2.2 (if the Importer reasonably requests) provide it with a copy of any TRA.

8.3 The Importer must:

8.3.1 before receiving any Transferred Data, provide the Exporter with all relevant information regarding Local Laws and practices and the protections and risks which apply to the Transferred Data when it is Processed by the Importer, including any information which may reasonably be required for the Exporter to carry out any TRA (the “Importer Information”);
8.3.2 co-operate with the Exporter to ensure compliance with the Exporter’s obligations under the UK Data Protection Laws;
8.3.3 review whether any Importer Information has changed, and whether any Local Laws contradict its obligations in this IDTA and take reasonable steps to verify this, on a regular basis. These reviews must be at least as frequent as the Review Dates; and
8.3.4 inform the Exporter as soon as it becomes aware of any Importer Information changing, and/or any Local Laws which may prevent or limit the Importer complying with its obligations in this IDTA. This information then forms part of the Importer Information.

8.4 The Importer must ensure that at the Start Date and during the Term:

8.4.1 the Importer Information is accurate;
8.4.2 it has taken reasonable steps to verify whether there are any Local Laws which contradict its obligations in this IDTA or any additional information regarding Local Laws which may be relevant to this IDTA.

8.5 Each Party must ensure that the Security Requirements and Extra Protection Clauses provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.

9. Reviews to ensure the Appropriate Safeguards continue

9.1 Each Party must:

9.1.1 review this IDTA (including the Security Requirements and Extra Protection Clauses and the Importer Information) at regular intervals, to ensure that the IDTA remains accurate and up to date and continues to provide the Appropriate Safeguards. Each Party will carry out these reviews as frequently as the relevant Review Dates or sooner; and
9.1.2 inform the other party in writing as soon as it becomes aware if any information contained in either this IDTA, any TRA or Importer Information is no longer accurate and up to date.

9.2 If, at any time, the IDTA no longer provides Appropriate Safeguards the Parties must Without Undue Delay:

9.2.1 pause transfers and Processing of Transferred Data whilst a change to the Tables is agreed. The Importer may retain a copy of the Transferred Data during this pause, in which case the Importer must carry out any Processing required to maintain, so far as possible, the measures it was taking to achieve the Appropriate Safeguards prior to the time the IDTA no longer provided Appropriate Safeguards, but no other Processing;
9.2.2 agree a change to Part one: Tables or Part two: Extra Protection Clauses which will maintain the Appropriate Safeguards (in accordance with Section 5); and
9.2.3 where a change to Part one: Tables or Part two: Extra Protection Clauses which maintains the Appropriate Safeguards cannot be agreed, the Exporter must end this IDTA by written notice on the Importer.

10. The ICO

10.1 Each Party agrees to comply with any reasonable requests made by the ICO in relation to this IDTA or its Processing of the Transferred Data.
10.2 The Exporter will provide a copy of any TRA, the Importer Information and this IDTA to the ICO, if the ICO requests.
10.3 The Importer will provide a copy of any Importer Information and this IDTA to the ICO, if the ICO requests.

The Exporter

11. Exporter’s obligations

11.1 The Exporter agrees that UK Data Protection Laws apply to its Processing of the Transferred Data, including transferring it to the Importer.

11.2 The Exporter must:

11.2.1 comply with the UK Data Protection Laws in transferring the Transferred Data to the Importer;
11.2.2 comply with the Linked Agreement as it relates to its transferring the Transferred Data to the Importer; and
11.2.3 carry out reasonable checks on the Importer’s ability to comply with this IDTA, and take appropriate action including under Section 9.2, Section 29 or Section 30, if at any time it no longer considers that the Importer is able to comply with this IDTA or to provide Appropriate Safeguards.

11.3 The Exporter must comply with all its obligations in the IDTA, including any in the Security Requirements, and any Extra Protection Clauses and any Commercial Clauses.

11.4 The Exporter must co-operate with reasonable requests of the Importer to pass on notices or other information to and from Relevant Data Subjects or any Third Party Controller where it is not reasonably practical for the Importer to do so. The Exporter may pass these on via a third party if it is reasonable to do so.
11.5 The Exporter must co-operate with and provide reasonable assistance to the Importer, so that the Importer is able to comply with its obligations to the Relevant Data Subjects under Local Law and this IDTA.

The Importer

12. General Importer obligations

12.1 The Importer must:

12.1.1 only Process the Transferred Data for the Purpose;
12.1.2 comply with all its obligations in the IDTA, including in the Security Requirements, any Extra Protection Clauses and any Commercial Clauses;
12.1.3 comply with all its obligations in the Linked Agreement which relate to its Processing of the Transferred Data;
12.1.4 keep a written record of its Processing of the Transferred Data, which demonstrate its compliance with this IDTA, and provide this written record if asked to do so by the Exporter;
12.1.5 if the Linked Agreement includes rights for the Exporter to obtain information or carry out an audit, provide the Exporter with the same rights in relation to this IDTA; and
12.1.6 if the ICO requests, provide the ICO with the information it would be required on request to provide to the Exporter under this Section 12.1 (including the written record of its Processing, and the results of audits and inspections).

12.2 The Importer must co-operate with and provide reasonable assistance to the Exporter and any Third Party Controller, so that the Exporter and any Third Party Controller are able to comply with their obligations under UK Data Protection Laws and this IDTA.

13. Importer’s obligations if it is subject to the UK Data Protection Laws

13.1 If the Importer’s Processing of the Transferred Data is subject to UK Data Protection Laws, it agrees that:

13.1.1 UK Data Protection Laws apply to its Processing of the Transferred Data, and the ICO has jurisdiction over it in that respect; and
13.1.2 it has and will comply with the UK Data Protection Laws in relation to the Processing of the Transferred Data.

13.2 If Section 13.1 applies and the Importer complies with Section 13.1, it does not need to comply with:

•   Section 14 (Importer’s obligations to comply with key data protection principles);
•   Section 15 (What happens if there is an Importer Personal Data Breach);
•   Section 15 (How Relevant Data Subjects can exercise their data subject rights); and
•   Section 21 (How Relevant Data Subjects can exercise their data subject rights – if the Importer is the Exporter’s Processor or Sub-Processor).

14. Importer’s obligations to comply with key data protection principles

14.1 The Importer does not need to comply with this Section 14 if it is the Exporter’s Processor or Sub-Processor.

14.2 The Importer must:

14.2.1 ensure that the Transferred Data it Processes is adequate, relevant and limited to what is necessary for the Purpose;
14.2.2 ensure that the Transferred Data it Processes is accurate and (where necessary) kept up to date, and (where appropriate considering the Purposes) correct or delete any inaccurate Transferred Data it becomes aware of Without Undue Delay; and
14.2.3 ensure that it Processes the Transferred Data for no longer than is reasonably necessary for the Purpose.

15. What happens if there is an Importer Personal Data Breach

15.1 If there is an Importer Personal Data Breach, the Importer must:

15.1.1 take reasonable steps to fix it, including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again. If the Importer is the Exporter’s Processor or Sub-Processor: these steps must comply with the Exporter’s instructions and the Linked Agreement and be in co-operation with the Exporter and any Third Party Controller; and
15.1.2 ensure that the Security Requirements continue to provide (or are changed in accordance with this IDTA so they do provide) a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.

15.2 If the Importer is a Processor or Sub-Processor: if there is an Importer Personal Data Breach, the Importer must:

15.2.1 notify the Exporter Without Undue Delay after becoming aware of the breach, providing the following information:

15.2.1.1 a description of the nature of the Importer Personal Data Breach;
15.2.1.2 (if and when possible) the categories and approximate number of Data Subjects and Transferred Data records concerned;
15.2.1.3 likely consequences of the Importer Personal Data Breach;
15.2.1.4 steps taken (or proposed to be taken) to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Appropriate Safeguards are in place;
15.2.1.5 contact point for more information; and
15.2.1.6 any other information reasonably requested by the Exporter,

15.2.2 if it is not possible for the Importer to provide all the above information at the same time, it may do so in phases, Without Undue Delay; and
15.2.3 assist the Exporter (and any Third Party Controller) so the Exporter (or any Third Party Controller) can inform Relevant Data Subjects or the ICO or any other relevant regulator or authority about the Importer Personal Data Breach Without Undue Delay.

15.3 If the Importer is a Controller: if the Importer Personal Data Breach is likely to result in a risk to the rights or freedoms of any Relevant Data Subject the Importer must notify the Exporter Without Undue Delay after becoming aware of the breach, providing the following information:

15.3.1 a description of the nature of the Importer Personal Data Breach;
15.3.2 (if and when possible) the categories and approximate number of Data Subjects and Transferred Data records concerned;
15.3.3 likely consequences of the Importer Personal Data Breach;
15.3.4 steps taken (or proposed to be taken) to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Appropriate Safeguards are in place;
15.3.5 contact point for more information; and
15.3.6 any other information reasonably requested by the Exporter.
If it is not possible for the Importer to provide all the above information at the same time, it may do so in phases, Without Undue Delay.

15.4 If the Importer is a Controller: if the Importer Personal Data Breach is likely to result in a high risk to the rights or freedoms of any Relevant Data Subject, the Importer must inform those Relevant Data Subjects Without Undue Delay, except in so far as it requires disproportionate effort, and provided the Importer ensures that there is a public communication or similar measures whereby Relevant Data Subjects are informed in an equally effective manner.

15.5 The Importer must keep a written record of all relevant facts relating to the Importer Personal Data Breach, which it will provide to the Exporter and the ICO on request.
This record must include the steps it takes to fix the Importer Personal Data Breach (including to minimise the harmful effects on Relevant Data Subjects, stop it from continuing, and prevent it happening again) and to ensure that Security Requirements continue to provide a level of security which is appropriate to the risk of a Personal Data Breach occurring and the impact on Relevant Data Subjects of such a Personal Data Breach.

16. Transferring on the Transferred Data

16.1 The Importer may only transfer on the Transferred Data to a third party if it is permitted to do so in Table 2: Transfer Details Table, the transfer is for the Purpose, the transfer does not breach the Linked Agreement, and one or more of the following apply:

16.1.1 the third party has entered into a written contract with the Importer containing the same level of protection for Data Subjects as contained in this IDTA (based on the role of the recipient as controller or processor), and the Importer has conducted a risk assessment to ensure that the Appropriate Safeguards will be protected by that contract; or
16.1.2 the third party has been added to this IDTA as a Party; or
16.1.3 if the Importer was in the UK, transferring on the Transferred Data would comply with Article 46 UK GDPR; or
16.1.4 if the Importer was in the UK transferring on the Transferred Data would comply with one of the exceptions in Article 49 UK GDPR; or
16.1.5 the transfer is to the UK or an Adequate Country.

16.2 The Importer does not need to comply with Section 16.1 if it is transferring on Transferred Data and/or allowing access to the Transferred Data in accordance with Section 23 (Access Requests and Direct Access).

17. Importer’s responsibility if it authorises others to perform its obligations

17.1 The Importer may sub-contract its obligations in this IDTA to a Processor or Sub-Processor (provided it complies with Section 16).

17.2 If the Importer is the Exporter’s Processor or Sub-Processor: it must also comply with the Linked Agreement or be with the written consent of the Exporter.

17.3 The Importer must ensure that any person or third party acting under its authority, including a Processor or Sub-Processor, must only Process the Transferred Data on its instructions.

17.4 The Importer remains fully liable to the Exporter, the ICO and Relevant Data Subjects for its obligations under this IDTA where it has sub-contracted any obligations to its Processors and Sub-Processors, or authorised an employee or other person to perform them (and references to the Importer in this context will include references to its Processors, Sub-Processors or authorised persons).

What rights do individuals have?

18. The right to a copy of the IDTA

18.1 If a Party receives a request from a Relevant Data Subject for a copy of this IDTA:

18.1.1 it will provide the IDTA to the Relevant Data Subject and inform the other Party, as soon as reasonably possible;
18.1.2 it does not need to provide copies of the Linked Agreement, but it must provide all the information from those Linked Agreements referenced in the Tables;
18.1.3 it may redact information in the Tables or the information provided from the Linked Agreement if it is reasonably necessary to protect business secrets or confidential information, so long as it provides the Relevant Data Subject with a summary of those redactions so that the Relevant Data Subject can understand the content of the Tables or the information provided from the Linked Agreement.

19. The right to Information about the Importer and its Processing

19.1 The Importer does not need to comply with this Section 19 if it is the Exporter’s Processor or Sub-Processor.

19.2 The Importer must ensure that each Relevant Data Subject is provided with details of:

•   the Importer (including contact details and the Importer Data Subject Contact);
•   the Purposes; and
•   any recipients (or categories of recipients) of the Transferred Data;

The Importer can demonstrate it has complied with this Section 19.2 if the information is given (or has already been given) to the Relevant Data Subjects by the Exporter or another party.
The Importer does not need to comply with this Section 19.2 in so far as to do so would be impossible or involve a disproportionate effort, in which case, the Importer must make the information publicly available.

19.3 The Importer must keep the details of the Importer Data Subject Contact up to date and publicly available. This includes notifying the Exporter in writing of any such changes.
19.4 The Importer must make sure those contact details are always easy to access for all Relevant Data Subjects and be able to easily communicate with Data Subjects in the English language Without Undue Delay.

20. How Relevant Data Subjects can exercise their data subject rights

20.1 The Importer does not need to comply with this Section 20 if it is the Exporter’s Processor or Sub-Processor.

20.2 If an individual requests, the Importer must confirm whether it is Processing their Personal Data as part of the Transferred Data.

20.3 The following Sections of this Section 20, relate to a Relevant Data Subject’s Personal Data which forms part of the Transferred Data the Importer is Processing.

20.4 If the Relevant Data Subject requests, the Importer must provide them with a copy of their Transferred Data:

20.4.1 Without Undue Delay (and in any event within one month);
20.4.2 at no greater cost to the Relevant Data Subject than it would be able to charge if it were subject to the UK Data Protection Laws;
20.4.3 in clear and plain English that is easy to understand; and
20.4.4 in an easily accessible form
together with
20.4.5 (if needed) a clear and plain English explanation of the Transferred Data so that it is understandable to the Relevant Data Subject; and
20.4.6 information that the Relevant Data Subject has the right to bring a claim for compensation under this IDTA.

20.5 If a Relevant Data Subject requests, the Importer must:

20.5.1 rectify inaccurate or incomplete Transferred Data;
20.5.2 erase Transferred Data if it is being Processed in breach of this IDTA;
20.5.3 cease using it for direct marketing purposes; and
20.5.4 comply with any other reasonable request of the Relevant Data Subject, which the Importer would be required to comply with if it were subject to the UK Data Protection Laws.

20.6 The Importer must not use the Transferred Data to make decisions about the Relevant Data Subject based solely on automated processing, including profiling (the “Decision-Making”), which produce legal effects concerning the Relevant Data Subject or similarly significantly affects them, except if it is permitted by Local Law and:

20.6.1 the Relevant Data Subject has given their explicit consent to such Decision-Making; or
20.6.2 Local Law has safeguards which provide sufficiently similar protection for the Relevant Data Subjects in relation to such Decision-Making, as to the relevant protection the Relevant Data Subject would have if such Decision-Making was in the UK; or
20.6.3 the Extra Protection Clauses provide safeguards for the Decision-Making which provide sufficiently similar protection for the Relevant Data Subjects in relation to such Decision-Making, as to the relevant protection the Relevant Data Subject would have if such Decision-Making was in the UK.

21. How Relevant Data Subjects can exercise their data subject rights- if the Importer is the Exporter’s Processor or Sub-Processor

21.1 Where the Importer is the Exporter’s Processor or Sub-Processor: If the Importer receives a request directly from an individual which relates to the Transferred Data it must pass that request on to the Exporter Without Undue Delay. The Importer must only respond to that individual as authorised by the Exporter or any Third Party Controller.

22. Rights of Relevant Data Subjects are subject to the exemptions in the UK Data Protection Laws

22.1 The Importer is not required to respond to requests or provide information or notifications under Sections 18, 19, 20, 21 and 23 if:

22.1.1 it is unable to reasonably verify the identity of an individual making the request; or
22.1.2 the requests are manifestly unfounded or excessive, including where requests are repetitive. In that case the Importer may refuse the request or may charge the Relevant Data Subject a reasonable fee; or
22.1.3 a relevant exemption would be available under UK Data Protection Laws, were the Importer subject to the UK Data Protection Laws.
If the Importer refuses an individual’s request or charges a fee under Section 22.1.2 it will set out in writing the reasons for its refusal or charge, and inform the Relevant Data Subject that they are entitled to bring a claim for compensation under this IDTA in the case of any breach of this IDTA.

How to give third parties access to Transferred Data under Local Laws

23. Access requests and direct access

23.1 In this Section ?23 an “Access Request” is a legally binding request (except for requests only binding by contract law) to access any Transferred Data and “Direct Access” means direct access to any Transferred Data by public authorities of which the Importer is aware.

23.2 The Importer may disclose any requested Transferred Data in so far as it receives an Access Request, unless in the circumstances it is reasonable for it to challenge that Access Request on the basis there are significant grounds to believe that it is unlawful.

23.3 In so far as Local Laws allow and it is reasonable to do so, the Importer will Without Undue Delay provide the following with relevant information about any Access Request or Direct Access: the Exporter; any Third Party Controller; and where the Importer is a Controller, any Relevant Data Subjects.

23.4 In so far as Local Laws allow, the Importer must:

23.4.1 make and keep a written record of Access Requests and Direct Access, including (if known): the dates, the identity of the requestor/accessor, the purpose of the Access Request or Direct Access, the type of data requested or accessed, whether it was challenged or appealed, and the outcome; and the Transferred Data which was provided or accessed; and
23.4.2 provide a copy of this written record to the Exporter on each Review Date and any time the Exporter or the ICO reasonably requests.

24. Giving notice

24.1 If a Party is required to notify any other Party in this IDTA it will be marked for the attention of the relevant Key Contact and sent by e-mail to the e-mail address given for the Key Contact.

24.2 If the notice is sent in accordance with Section 24.1, it will be deemed to have been delivered at the time the e-mail was sent, or if that time is outside of the receiving Party’s normal business hours, the receiving Party’s next normal business day, and provided no notice of non-delivery or bounceback is received.

24.3 The Parties agree that any Party can update their Key Contact details by giving 14 days’ (or more) notice in writing to the other Party.

25. General clauses

25.1 In relation to the transfer of the Transferred Data to the Importer and the Importer’s Processing of the Transferred Data, this IDTA and any Linked Agreement:

25.1.1 contain all the terms and conditions agreed by the Parties; and
25.1.2 override all previous contacts and arrangements, whether oral or in writing.

25.2 If one Party made any oral or written statements to the other before entering into this IDTA (which are not written in this IDTA) the other Party confirms that it has not relied on those statements and that it will not have a legal remedy if those statements are untrue or incorrect, unless the statement was made fraudulently.

25.3 Neither Party may novate, assign or obtain a legal charge over this IDTA (in whole or in part) without the written consent of the other Party, which may be set out in the Linked Agreement.

25.4 Except as set out in Section 17.1, neither Party may sub contract its obligations under this IDTA without the written consent of the other Party, which may be set out in the Linked Agreement.

25.5 This IDTA does not make the Parties a partnership, nor appoint one Party to act as the agent of the other Party.

25.6 If any Section (or part of a Section) of this IDTA is or becomes illegal, invalid or unenforceable, that will not affect the legality, validity and enforceability of any other Section (or the rest of that Section) of this IDTA.

25.7 If a Party does not enforce, or delays enforcing, its rights or remedies under or in relation to this IDTA, this will not be a waiver of those rights or remedies. In addition, it will not restrict that Party’s ability to enforce those or any other right or remedy in future.

25.8 If a Party chooses to waive enforcing a right or remedy under or in relation to this IDTA, then this waiver will only be effective if it is made in writing. Where a Party provides such a written waiver:

25.8.1 it only applies in so far as it explicitly waives specific rights or remedies;
25.8.2 it shall not prevent that Party from exercising those rights or remedies in the future (unless it has explicitly waived its ability to do so); and
25.8.3 it will not prevent that Party from enforcing any other right or remedy in future.

What happens if there is a breach of this IDTA?

26. Breaches of this IDTA

26.1 Each Party must notify the other Party in writing (and with all relevant details) if it:

26.1.1 has breached this IDTA; or
26.1.2 it should reasonably anticipate that it may breach this IDTA, and provide any information about this which the other Party reasonably requests.

26.2 In this IDTA “Significant Harmful Impact” means that there is more than a minimal risk of a breach of the IDTA causing (directly or indirectly) significant damage to any Relevant Data Subject or the other Party.

27. Breaches of this IDTA by the Importer

27.1 If the Importer has breached this IDTA, and this has a Significant Harmful Impact, the Importer must take steps Without Undue Delay to end the Significant Harmful Impact, and if that is not possible to reduce the Significant Harmful Impact as much as possible.

27.2 Until there is no ongoing Significant Harmful Impact on Relevant Data Subjects:

27.2.1 the Exporter must suspend sending Transferred Data to the Importer;
27.2.2 If the Importer is the Exporter’s Processor or Sub-Processor: if the Exporter requests, the importer must securely delete all Transferred Data or securely return it to the Exporter (or a third party named by the Exporter); and
27.2.3 if the Importer has transferred on the Transferred Data to a third party receiver under Section 16, and the breach has a Significant Harmful Impact on Relevant Data Subject when it is Processed by or on behalf of that third party receiver, the Importer must:

27.2.3.1 notify the third party receiver of the breach and suspend sending it Transferred Data; and
27.2.3.2 if the third party receiver is the Importer’s Processor or Sub-Processor: make the third party receiver securely delete all Transferred Data being Processed by it or on its behalf, or securely return it to the Importer (or a third party named by the Importer).

27.3 If the breach cannot be corrected Without Undue Delay, so there is no ongoing Significant Harmful Impact on Relevant Data Subjects, the Exporter must end this IDTA under Section 30.1.

28. Breaches of this IDTA by the Exporter

28.1 If the Exporter has breached this IDTA, and this has a Significant Harmful Impact, the Exporter must take steps Without Undue Delay to end the Significant Harmful Impact and if that is not possible to reduce the Significant Harmful Impact as much as possible.

28.2 Until there is no ongoing risk of a Significant Harmful Impact on Relevant Data Subjects, the Exporter must suspend sending Transferred Data to the Importer.

28.3 If the breach cannot be corrected Without Undue Delay, so there is no ongoing Significant Harmful Impact on Relevant Data Subjects, the Importer must end this IDTA under Section 30.1.

Ending the IDTA

29. How to end this IDTA without there being a breach

29.1 The IDTA will end:

29.1.1 at the end of the Term stated in Table 2: Transfer Details; or
29.1.2 if in Table 2: Transfer Details, the Parties can end this IDTA by providing written notice to the other: at the end of the notice period stated;
29.1.3 at any time that the Parties agree in writing that it will end; or
29.1.4 at the time set out in Section 29.2.

29.2 If the ICO issues a revised Approved IDTA under Section 5.4, if any Party selected in Table 2 “Ending the IDTA when the Approved IDTA changes”, will as a direct result of the changes in the Approved IDTA have a substantial, disproportionate and demonstrable increase in:

29.2.1 its direct costs of performing its obligations under the IDTA; and/or
29.2.2 its risk under the IDTA,
and in either case it has first taken reasonable steps to reduce that cost or risk so that it is not substantial and disproportionate, that Party may end the IDTA at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved IDTA.

30. How to end this IDTA if there is a breach

30.1 A Party may end this IDTA immediately by giving the other Party written notice if:

30.1.1 the other Party has breached this IDTA and this has a Significant Harmful Impact. This includes repeated minor breaches which taken together have a Significant Harmful Impact, and

30.1.1.1 the breach can be corrected so there is no Significant Harmful Impact, and the other Party has failed to do so Without Undue Delay (which cannot be more than 14 days of being required to do so in writing); or
30.1.1.2 the breach and its Significant Harmful Impact cannot be corrected;

30.1.2 the Importer can no longer comply with Section 8.3, as there are Local Laws which mean it cannot comply with this IDTA and this has a Significant Harmful Impact.

31. What must the Parties do when the IDTA ends?

31.1 If the parties wish to bring this IDTA to an end or this IDTA ends in accordance with any provision in this IDTA, but the Importer must comply with a Local Law which requires it to continue to keep any Transferred Data then this IDTA will remain in force in respect of any retained Transferred Data for as long as the retained Transferred Data is retained, and the Importer must:

31.1.1 notify the Exporter Without Undue Delay, including details of the relevant Local Law and the required retention period;
31.1.2 retain only the minimum amount of Transferred Data it needs to comply with that Local Law, and the Parties must ensure they maintain the Appropriate Safeguards, and change the Tables and Extra Protection Clauses, together with any TRA to reflect this; and
31.1.3 stop Processing the Transferred Data as soon as permitted by that Local Law and the IDTA will then end and the rest of this Section 29 will apply.

31.2 When this IDTA ends (no matter what the reason is):

31.2.1 the Exporter must stop sending Transferred Data to the Importer; and
31.2.2 if the Importer is the Exporter’s Processor or Sub-Processor: the Importer must delete all Transferred Data or securely return it to the Exporter (or a third party named by the Exporter), as instructed by the Exporter;
31.2.3 if the Importer is a Controller and/or not the Exporter’s Processor or Sub-Processor: the Importer must securely delete all Transferred Data.
31.2.4 the following provisions will continue in force after this IDTA ends (no matter what the reason is):

•   Section 1 (This IDTA and Linked Agreements);
•   Section 2 (Legal Meaning of Words);
•   Section 6 (Understanding this IDTA);
•   Section 7 (Which laws apply to this IDTA);
•   Section 10 (The ICO);
•   Sections 1 and 11.4 (Exporter’s obligations);
•   Sections 1.2, 12.1.3, 12.1.4, 12.1.5 and 12.1.6 (General Importer obligations);
•   Section 1 (Importer’s obligations if it is subject to UK Data Protection Laws);
•   Section 17 (Importer’s responsibility if it authorised others to perform its obligations);
•   Section 24 (Giving notice);
•   Section 25 (General clauses);
•   Section 31 (What must the Parties do when the IDTA ends);
•   Section 32 (Your liability);
•   Section 33 (How Relevant Data Subjects and the ICO may bring legal claims);
•   Section 34 (Courts legal claims can be brought in);
•   Section 35 (Arbitration); and
•   Section 36 (Legal Glossary).

How to bring a legal claim under this IDTA

32. Your liability

32.1 The Parties remain fully liable to Relevant Data Subjects for fulfilling their obligations under this IDTA and (if they apply) under UK Data Protection Laws.

32.2 Each Party (in this Section, “Party One”) agrees to be fully liable to Relevant Data Subjects for the entire damage suffered by the Relevant Data Subject, caused directly or indirectly by:

32.2.1 Party One’s breach of this IDTA; and/or
32.2.2 where Party One is a Processor, Party One’s breach of any provisions regarding its Processing of the Transferred Data in the Linked Agreement;
32.2.3 where Party One is a Controller, a breach of this IDTA by the other Party if it involves Party One’s Processing of the Transferred Data (no matter how minimal)
in each case unless Party One can prove it is not in any way responsible for the event giving rise to the damage.

32.3 If one Party has paid compensation to a Relevant Data Subject under Section 32.2, it is entitled to claim back from the other Party that part of the compensation corresponding to the other Party’s responsibility for the damage, so that the compensation is fairly divided between the Parties.

32.4 The Parties do not exclude or restrict their liability under this IDTA or UK Data Protection Laws, on the basis that they have authorised anyone who is not a Party (including a Processor) to perform any of their obligations, and they will remain responsible for performing those obligations.

33. How Relevant Data Subjects and the ICO may bring legal claims

33.1 The Relevant Data Subjects are entitled to bring claims against the Exporter and/or Importer for breach of the following (including where their Processing of the Transferred Data is involved in a breach of the following by either Party):

•   Section 1 (This IDTA and Linked Agreements);
•   Section3 (You have provided all the information required by Part one: Tables and Part two: Extra Protection Clauses);
•   Section 8 (The Appropriate Safeguards);
•   Section 9 (Reviews to ensure the Appropriate Safeguards continue);
•   Section 11 (Exporter’s obligations);
•   Section 12 (General Importer Obligations);
•   Section 13 (Importer’s obligations if it is subject to UK Data Protection Laws);
•   Section 14 (Importer’s obligations to comply with key data protection laws);
•   Section 15 (What happens if there is an Importer Personal Data Breach);
•   Section 16 (Transferring on the Transferred Data);
•   Section 17 (Importer’s responsibility if it authorises others to perform its obligations);
•   Section 18 (The right to a copy of the IDTA);
•   Section 19 (The Importer’s contact details for the Relevant Data Subjects);
•   Section 20 (How Relevant Data Subjects can exercise their data subject rights);
•   Section 21 (How Relevant Data Subjects can exercise their data subject rights– if the Importer is the Exporter’s Processor or Sub-Processor);
•   Section 23 (Access Requests and Direct Access);
•   Section 26 (Breaches of this IDTA);
•   Section 27 (Breaches of this IDTA by the Importer);
•   Section 28 (Breaches of this IDTA by the Exporter);
•   Section 30 (How to end this IDTA if there is a breach);
•   Section 31 (What must the Parties do when the IDTA ends); and
• any other provision of the IDTA which expressly or by implication benefits the Relevant Data Subjects.

33.2 The ICO is entitled to bring claims against the Exporter and/or Importer for breach of the following Sections: Section 10 (The ICO), Sections 11.1 and 11.2 (Exporter’s obligations), Section 12.1.6 (General Importer obligations) and Section 13 (Importer’s obligations if it is subject to UK Data Protection Laws).

33.3 No one else (who is not a Party) can enforce any part of this IDTA (including under the Contracts (Rights of Third Parties) Act 1999).

33.4 The Parties do not need the consent of any Relevant Data Subject or the ICO to make changes to this IDTA, but any changes must be made in accordance with its terms.

33.5 In bringing a claim under this IDTA, a Relevant Data Subject may be represented by a not-for-profit body, organisation or association under the same conditions set out in Article 80(1) UK GDPR and sections 187 to 190 of the Data Protection Act 2018.

34. Courts legal claims can be brought in

34.1 The courts of the UK country set out in Table 2: Transfer Details have non-exclusive jurisdiction over any claim in connection with this IDTA (including non-contractual claims).

34.2 The Exporter may bring a claim against the Importer in connection with this IDTA (including non-contractual claims) in any court in any country with jurisdiction to hear the claim.

34.3 The Importer may only bring a claim against the Exporter in connection with this IDTA (including non-contractual claims) in the courts of the UK country set out in the

Table 2: Transfer Details

34.4 Relevant Data Subjects and the ICO may bring a claim against the Exporter and/or the Importer in connection with this IDTA (including non-contractual claims) in any court in any country with jurisdiction to hear the claim.

34.5 Each Party agrees to provide to the other Party reasonable updates about any claims or complaints brought against it by a Relevant Data Subject or the ICO in connection with the Transferred Data (including claims in arbitration).

35. Arbitration

35.1 Instead of bringing a claim in a court under Section 34, any Party, or a Relevant Data Subject may elect to refer any dispute arising out of or in connection with this IDTA (including non-contractual claims) to final resolution by arbitration under the Rules of the London Court of International Arbitration, and those Rules are deemed to be incorporated by reference into this Section ?35.

35.2 The Parties agree to submit to any arbitration started by another Party or by a Relevant Data Subject in accordance with this Section ??35.

35.3 There must be only one arbitrator. The arbitrator (1) must be a lawyer qualified to practice law in one or more of England and Wales, or Scotland, or Northern Ireland and (2) must have experience of acting or advising on disputes relating to UK Data Protection Laws.

35.4 London shall be the seat or legal place of arbitration. It does not matter if the Parties selected a different UK country as the ‘primary place for legal claims to be made’ in Table 2: Transfer Details.

35.5 The English language must be used in the arbitral proceedings.

35.6 English law governs this Section ??35. This applies regardless of whether or not the parties selected a different UK country’s law as the ‘UK country’s law that governs the IDTA’ in Table 2: Transfer Details.

36. Legal Glossary