Distributors and Affiliates

These Terms were last updated on June 26, 2023.

1. Applicability. These Distributor Terms (“Terms”), together with your Distributor Registration Form (once approved by Digital River) and any applicable Exhibits (collectively, the “Agreement”), govern the 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 for DR to purchase products from you (after you have purchased them from our mutual client, the “Brand”) and for DR to then resell those products to DR’s shoppers. THESE TERMS WILL BECOME BINDING ON BOTH OF US UPON DR’S APPROVAL OF YOUR DISTRIBUTOR REGISTRATION FORM. These Terms apply to all offers, quotations, sales and deliveries unless otherwise agreed in writing between us.

2. Exhibits. The Operational Terms Exhibit, along with any 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 distribution/reseller relationship.

3. Order of Precedence. Any conflict between your approved Registration Form, these Terms and any applicable Exhibits, other than the indemnity obligations in Section 14, the ownership and intellectual property terms in Section 22, and the limitations on liability in Section 24, will be governed in the following order: by the terms in your approved Registration Form as it relates to the collaboration under that approved Registration Form, by the terms in an applicable Exhibit as it relates to that Exhibit, and then by these Terms.

4. DR’s “Know Your Customer” and Anti Money Laundering Regulatory Obligations. When DR enters into a Registration Form with you, DR will be taking on online sales related risks on your behalf by acting as your online reseller, processing regulatory requirements, taxes and payments for you and delivering DR’s Global Seller Service Solution (“GSS” or the “Solution”) for you. To set up your account, you must provide certain information DR will request, which includes completing DR’s Know Your Customer account verification form and may include you providing additional information required to comply with anti-money laundering regulations. DR will also conduct, and you authorize DR to conduct, a customary commercial background check for these purposes and to assess the risk of doing business with you. Your failure to provide true, accurate and complete information may result in DR denying your account registration or suspending or terminating the business relationship between us.

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, and either party may change its liaison from time to time upon written notice to the other party.

6. Licenses. During the term of your use of DR’s Solution, (i) DR grants you a license to use DR’s APIs and/or administration interface applicable to the Solution solely for your use of the Solution, and (ii) if the Solution requires either of us to use the other party’s trademarks and logos to perform or use the Solution, we each hereby grant the other party a license to do so solely as required in connection with the performance or use of the Solution under the Agreement, and only in the form and with appropriate legends as required by the other party. With your express written permission, DR may also include your company name and logo in DR’s marketing materials.

7. Territory. DR will purchase the Brand’s products from you for resale to DR’s shoppers in the Territory defined in the Registration Form.

8. Payment Process Options. The payment process for DR to pay you for the Brand’s products may vary depending on the Brand. DR uses two different payment processes depending on which option is selected in the Registration Form for a particular Brand’s products: either the Settlement Payment process or the Invoice Payment process.

9. Retention of Title of Products. You retain the title to the products until the purchase price, including delivery costs, has been processed and the order is released for fulfillment. DR then takes title for the products until delivery to the shopper.

10. Terms of Delivery. Orders will be shipped on your carrier account. You must ship the order based on the service level and, if provided, the carrier specified in the instructions DR passes to you in the order request file. You are responsible for communications with the carrier and their claims process(es) when required for delivery exceptions, and are responsible for all risk of loss during shipment to the shopper. You must prohibit any change to the delivery address unless initiated by DR. In addition, DR will only accept for resale (i) inventory you own (which you shall continue to own while in your warehouse) that is customs cleared (duty/tax paid) in free circulation available for resale, and (ii) inventory of the latest version of each product, appropriately labeled for use in the approved Territories set forth in an approved Registration Form, including all certifications, approvals and authorizations needed for use in those countries. DR is not tied to the movement of your inventory into the Territories. The import of the product outside a commerce transaction on DR’s system(s) of record is outside the scope of these Terms.

11. Import and Export Regulations.  You are responsible for proper and accurate completion of all applicable export documentation and reporting required by Export Control Laws (as defined below), including without limitation Electronic Export Information (“EEI”) filings. You must provide DR with proof of shipment for a given shipment upon DR’s request. For any cross-border transactions, you will be the exporter of record for export control purposes and the shopper will be the importer of record. However, if DR is deemed by law to be the importer of record for shipments of your products into a jurisdiction, you agree to reimburse DR for all unrecoverable duties, taxes and clearance fees.

12. Export Compliance. Each of us shall comply with all applicable export control laws and regulations of all countries in which DR and you conduct business (collectively, “Export Control Laws”) that may apply to such party’s activities under these Terms, any products, or any shoppers, including, without limitation, the Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), Foreign Assets Control Regulations, Foreign Trade Regulations and U.S. Customs Regulations. DR’s policy is to not provide information or documentation, or to participate in any way with a foreign boycott-related request that would violate US anti-boycott laws, rules and/or regulations. DR may cancel any transaction involving an IP address, bill-to address and/or ship-to address indicating an embargoed or sanctioned country, an individual or entity designated on any US or foreign restricted parties list, such as but not limited to the Denied Persons Lists, and Specially Designated Nationals Lists, Unverified Lists, Entity Lists, Debarred Parties Lists, and Nonproliferation Sanctions Lists (collectively, “Restricted Parties Lists”), or where prohibited end-use is indicated. You agree and acknowledge that DR has the right to immediately terminate the Agreement without penalty if it determines that it is unable to engage in business with you under applicable Export Control Laws or DR’s territorial restrictions for permitted commerce, including without limitation your designation on one or more Restricted Parties Lists or residence in or provision of products or company-offered services from a country which is embargoed/sanctioned or in which DR does not conduct commerce.

13. Limited Warranty and Disclaimer. DR warrants that it will perform the Solution in a professional manner in accordance with all applicable laws, rules, regulations and generally accepted standards and practices in its industry. You acknowledge that the Solution is reliant upon your compliance with the Agreement terms. If you are non-compliant with the Agreement, you proceed at your own risk and DR cannot and does not provide any warranties for the Solution, including without limitation any warranty that the sales transactions will be processed in accordance with applicable laws, rules or regulations. Except as set forth in this Agreement, the Solution is provided “as is” and on an “as available” basis without warranty of any kind, whether express or implied, and DR disclaims all other warranties, including any warranty of merchantability or fitness for a particular purpose.

14. We are each responsible for our own work. Indemnification. 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 Brand, 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 liability 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. In the defense or settlement of a claim of infringement of third party intellectual property rights relating to the Solution (or if DR reasonably believes the Solution or any portion of the Solution does or may infringe the rights of a third party), DR will have the option at its expense to (i) modify the Solution to become non-infringing, or (ii) obtain for you the right to continue using the Solution, or if DR determines in its discretion that (i) or (ii) is not reasonably commercially available, then (iii) terminate the Agreement with respect to the Solution and provide you a prorated refund of recurring fees previously received by DR hereunder for the Solution corresponding to any period after the effective date of such termination. 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.

15. 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. The Agreement does 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.

16. Publicity and Marks. Except as may be set forth in an Exhibit 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 the Agreement 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.

17. Your Data Privacy. We are engaging in one or more mutually beneficial business relationships (collectively, the “Business Relationship”). We each recognize that in the course of our discussions to further the Business Relationship, it will be necessary for each of us to disclose to the other certain Confidential Information in accordance with Section 18 and the Data Handling Exhibit, which is incorporated into these Terms by reference.

18. Confidentiality. We each understand and agree that in the performance of the Agreement, 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 the Agreement; (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 the Agreement (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 the Agreement, (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.

19. 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 Brand. DR is committed to maintaining Service Organization Controls (SOC 1 and SOC 2) for financial and security controls. You may visit the DR compliance site to request access and review DR’s compliance reports, which are DR’s Confidential Information. DR’s compliance site is found at https://www.digitalriver.com/compliance/.

20. 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 the Agreement, 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 the Agreement 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 the Agreement.

21. Non-solicitation. While the Agreement is 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.

22. Ownership and Intellectual Property. 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.

23. Insurance. For so long as the Agreement is 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.

24. Limitations on Liability. Except for any indemnification obligations in Section 14 or any payment obligations, the total liability a party may have towards the other under or related to the Agreement shall not exceed the net amount realized by that party under the Agreement 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. In addition, neither party will be liable for the other party’s agreement with the Brand, actions of the shoppers, or for events beyond its reasonable control. These limitations apply notwithstanding any failure of essential purpose of any limited remedy provided herein.

25. Term and Termination. Once your Registration Form is accepted by DR, these Terms and any applicable Exhibits will remain in effect for the initial term set forth in the approved Registration Form, and will be extended at 12-month intervals unless either party provides a written notice of non-renewal to the other party at least ninety (90) days in advance of the then-current term. Either party may terminate the Agreement or any Exhibits (a) upon ninety (90) days’ advance written notice of termination to the breaching party for material breach of the Agreement and/or any affected Exhibits if such material breach is not cured within such period, or (b) if the other party initiates or has initiated against it any proceeding under any statute or law for the modification or adjustment of the rights of creditors which is not dismissed within sixty (60) days from the date of filing. In addition, you may terminate the Agreement or any affected Exhibit(s) (i) in accordance with Section 26, or (ii) if DR repeatedly fails to make timely settlement payments to you. Upon the expiration or termination of the Agreement or an Exhibit (or upon any applicable wind down period included in the Agreement), you may no longer use the Solution (including any of DR’s software, such as DR’s APIs and/or administration interface) and DR will stop providing them, and each party shall discontinue its performance under the Agreement or the terminated Exhibit(s), including all uses of the other’s Marks granted in connection with the Agreement or the Exhibit(s), and shall, at its expense, promptly return or destroy all copies of the other party’s Confidential Information relating to the terminated Agreement or Exhibit(s) (and, if requested, provide an officer’s certification of destruction). The provisions of the Agreement that require or may require performance after termination will survive any termination or expiration of the Agreement or applicable terminated Exhibit(s).

26. Modifications. These Terms are designed for the Solution to coordinate with the requirements of DR’s third-party providers and comply with applicable legal regulations around the world, so they are not modifiable on an individual basis. From time to time in the course of our business DR may modify these Terms and Exhibits and/or Services. DR 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 DR to give earlier notice. If the change materially impairs our relationship, you may terminate the Agreement or the affected Exhibit(s) by providing DR thirty (30) days advance written notice of your election to terminate, provided that DR receives your notice within thirty (30) days of DR’s notice of the upcoming change. Subject to your termination rights in Section 25, your continued participation hereunder after the effective date of any modification to the Services or these Terms or Exhibits constitutes your acceptance of such modification.

27. 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 DR in your registration information, or to DR, at DR’s corporate office identified on its website, attention General Counsel, when delivered by commercial carrier and evidenced by the delivery receipt.

28. Injunctive Relief. Each party acknowledges that its breach of the Agreement 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 the Agreement 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 the Agreement, 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 the Agreement.

29. Governing Law. If DR’s U.S. entities are parties to these Terms or any Exhibit, 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, disputes related hereto are governed by the laws of 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.

30. Miscellaneous. The approved Registration From, these Terms, and any Exhibit(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 26. No provisions in either party’s purchase orders, invoices or other business forms will alter the Agreement. If any provision of the Agreement 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 the Agreement. All provisions not affected by the invalidity shall remain in full force and effect. No waiver of any provision or breach of the Agreement 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 the Agreement 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 the Agreement 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 the Agreement if the assignment is to a direct competitor of the non-assigning party. Any claim by you or DR for breach of the Agreement 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. DR may engage the services of subcontractors or agents to assist DR in the performance of its obligations provided that DR will be responsible for their acts and omissions in the performance of such obligations under the Agreement. No party will be in breach of the Agreement 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 the Agreement or the affected Exhibit(s) without cause upon written notice to the other party.

These Operational Terms represent the basis of a working relationship between you and DR and replace any prior versions of these terms agreed between us. The primary aim of these Operational Terms is to clarify the roles and responsibilities of each party, the detail of services to be provided by you to DR and the standards to be adhered to by you and your suppliers. The underlying objective is to promote best practices between both parties.

1. Order Fulfillment

2. Cancellations. Cancellations will be requested by email from the Brand’s customer service team (as designated by DR) to your assigned contact. You shall make your best effort to process cancellation requests as soon as possible on the same day, however when the goods are already shipped from the warehouse, DR acknowledges that you are not always able to stop the shipment before the delivery. Any orders confirmed as cancelled by you and subsequently shipped will be your responsibility; DR will not be responsible for payments for orders that are confirmed as cancelled by you and any invoiced but confirmed cancelled orders must be credited to DR. DR will not be responsible for recovery of goods confirmed cancelled but subsequently shipped, and the issuance of a credit note to DR is not contingent upon your recovery of product.

3. Duplicate and Wrong Product Shipments. The costs associated with any orders fulfilled in duplicate or where the wrong product was shipped will be your responsibility. Any invoices issued to DR in relation to a duplicate or wrong product shipment must be credited to DR. DR will not be responsible for the recovery of goods associated with the duplicate or wrong product shipments, and the issuance of a credit note to DR is not contingent upon your recovery of the product.

4 Contingency & Disaster Recovery Plan. You will maintain a documented Contingency Plan and a Disaster Recovery Plan to enable continuity of your business to best ensure the services defined in the SLA can be maintained.

5. Security & Access. You will maintain a documented security policy, systems, testing schedule and incident management protocol to best safeguard the integrity and security of all information held on whatever media or form. You will maintain physical access control and intruder detection systems, to the industry standard, to safeguard stock held.

6. SLA’s for Your response times on DR inquiries.

Under this Settlement Payment option, DR will make settlement payments to you, and you will pay the “Brand” (our mutual client whose products you distribute). This Settlement Payment process requires you to have a separate agreement between you and the Brand to address how you will pay the Brand.

1. Your Agreement with the Brand. If DR enters into the Agreement with you, you acknowledge that DR does so in reliance upon the Agreement, the length of the term and scope of Solutions you and the Brand order, and that you have entered into (or will enter into) a separate binding agreement with the Brand for the use of the Solutions you and the Brand order. You must coordinate and adhere to your agreement with the Brand, including as it relates to your payment obligations to the Brand. For example, if the Brand authorizes a return or promotion, you must coordinate with the Brand to implement the return or promotion so that DR may act on it. If you have any contractual issues under your agreement with the Brand, including any payment issues, you must work out those issues directly with the Brand. If your agreement with the Brand terminates for any reason prior to the completion of the scope and services of Solutions you and the Brand ordered, you and the Brand will remain liable for your and the Brand’s obligations to DR under your and the Brand’s agreements with DR. You agree to indemnify, defend and hold DR harmless from and against any claims of liability of any kind relating to your agreements between you and the Brand, including any claims relating to payments.

2. Resale Transactions. An offer to purchase a product submitted by a shopper through the Brand’s eCommerce website, as identified in your Registration Form, represents an offer to purchase the product from DR. If DR accepts the offer from the shopper, DR will contract directly with the shopper for the products and will identify itself, and be identified by the Brand, as a reseller of the products (the “merchant” for purposes of the sales transaction). DR will purchase the product that the shopper has offered to purchase from the Brand’s eCommerce website, and you will immediately sell and transfer title to that product to DR for DR’s resale of the product to the shopper. As the authorized reseller and merchant, DR is entitled to retain the full amount of the purchase price, including any related taxes and fees, for the products sold to shoppers by DR, net of any amounts owed by DR to you for DR’s initial purchase of that product for resale or as otherwise set forth in this Agreement.

3. Information You Provide. DR’s Global Seller Service Solution (“GSS” or the “Solution”) is dependent upon the information you provide or that you cause the Brand to provide (e.g., DR must know about the products in order for the Solution to legitimately resell the products, process payments for the products, and for the DR software logic to help determine if a purchase is fraudulent), so you must provide in a timely manner all information in your control reasonably required by DR to comply with DR’s obligations. If DR requires information that the Brand has and you do not have, then you are responsible to coordinate with the Brand to either obtain the information from the Brand and provide it to DR, or to act as a liaison between DR and the Brand and cause the Brand to send the information to DR. You must respond promptly to any request for direction, information, or approval that are reasonably necessary for DR to deliver the Solution for you or protect DR’s rights under the Agreement. The information you provide must be accurate, true and complete, and if any information is or becomes inaccurate or incomplete, you must immediately notify DR, and DR may require you to obtain additional risk and/or compliance approval from DR. As condition to such approval, DR may require additional obligations from you. In order to verify your information and compliance with the Agreement and as may be required of DR by the card associations, processor/acquiring banks or legal or regulatory payment authorities in connection with the resale of the products through the Solution, DR may require you to verify your information or to permit a third party auditor approved by DR to conduct an audit of your information, and you must fully cooperate with any reasonable requests for information or assistance by DR or the auditor. DR may share the reports with the card associations, processor/acquiring banks or legal or regulatory payment authorities used to provide the Solution to you as they require of DR.

4. Transaction Information. GSS will receive from the Brand’s connected online shopping experience the transaction information from you or the Brand as defined in the Registration Form. Details regarding the specific information and materials you and/or the Brand must provide can be found in the Guidelines and Best Practices. DR may rely and act on all details you or the Brand give to DR and/or that GSS collects regarding the shopper orders.

5. Trade Compliance Services. All offers for sale using GSS are subject to export control requirements and antitrust and fair-trade regulations and laws as set forth in the Guidelines and Best Practices. You must not submit to DR any transaction or offer any product for resale by DR that violates the export and/or other trade compliance provisions in the Guidelines and Best Practices. DR may cancel or not process any transaction, or decline to resell a product, suspend the resale of a product, and/or remove any product from GSS, that DR believes in good faith does not comply with the Guidelines and Best Practices. DR will notify you of any suspension of the sale of a product and, where possible, will consult with you before acting with respect to the suspension of the sale of a product.

6. Fraud Screening. DR will use fraud screening tools to screen for, detect, prevent, and take such other actions as DR deems reasonably necessary to detect and/or prevent fraudulent activity in connection with sales from a shopping or order capture experience connected to GSS. The existence of fraud, or the possibility of the existence of fraud, will be determined by DR, based in part on fraud data points you are required to provide to DR in accordance with the Agreement plus your input where DR requests it to assist its anti-fraud efforts.

7. Other Risk Mitigation. DR may take other measures in its reasonable discretion to avert, minimize or mitigate any potential loss, corruption, theft of data or other security risk, including, but not limited to, the limitation or temporary suspension of the provision of GSS, without any liability to you.

8. Taxes.

9. Payment Transaction Processing. DR will use DR-owned merchant accounts and GSS will process the payment transaction as set forth herein and in accordance with the specific payment methods and costs for accepting the payment methods, as well any local currencies, and if necessary, currency conversions, defined in the Registration Form. If DR requests, you will provide shopper order validation and authorization information to DR. You will immediately inform DR if there is any reason to believe that any information and/or instructions you provided to DR have been incorrectly processed or sent to DR (including, but not limited to, incorrect instructions about refunded payments).

10. PCI Compliance. DR holds and will continue to hold through the term of your use of GSS, a PCI Data Security Standard (PCI-DSS) certification appropriate for the card volume DR processes annually. In addition, DR will tokenize all card transactions in a PCI compliant manner. At your request, DR will provide a copy of its then-current annual Attestation of Compliance. See help.digitalriver.com/compliance/Compliance.htm. Unless you use DR’s secure payment form, you will be and will remain PCI-DSS compliant. In addition, you must periodically provide proof of PCI-DSS compliance according to the regulations or guidelines imposed by banks, card associations or legal or regulatory payment authorities, which will include at least the PCI DSS self-assessment questionnaire.

11. Payment Instrument Validation. DR uses a payment service to determine if the payment instrument can be validated or authorized and if the order’s payment type cannot be settled until further action is taken by the shopper, DR will hold the order pending that action.

12. Billing Optimization. DR will leverage its proprietary billing optimization tools and network of global and local payment partners to reduce the number of transactions declined by payment processors.

13. Process Authorizations, Refunds and Chargebacks. DR will process authorization(s), capture, refund and chargeback transactions for both single purchase transactions and recurring billing transactions through one of DR’s payment processing relationships.

14. Order Orchestration.

15. Shopper Support Services.

16. Warranty and Recalls. You and the Brand are solely responsible for all warranty and recall obligations relating to product(s) in accordance with the Brand’s warranty policy, but in no event inconsistent with the laws and regulations of the jurisdictions in which the product(s) are sold. You will notify DR of any public or private recall or claim of infringement, or of any other liability or claims involving or relating to a product DR offers for resale through GSS. DR will provide reasonable assistance in such cases, so long as you will pay all of DR’s related expenses.

17. Financial Dashboard. DR will provide you access to a financial dashboard which lists all payments made to you. You will have access through the financial dashboard to a periodic sales summary which represents aggregate payment information for a defined period of time as well as access to individual sales transactions. If you believe the financial dashboard has errors, you must notify DR of the error(s) within sixty (60) days of when the data was made available to you in order to be able to dispute the error(s).

18. Payments to You. Once DR has received notification of fulfillment for processed transactions, GSS will, directly or through a payment service provider, collect and reconcile the funds paid by the shopper for the purchase of the product, and payments to you through GSS for such settled transactions will be aggregated into a payment to you in accordance with the applicable Registration Form.

19. Termination of Agreement. The performance of the Solution is dependent on the information, materials and rights granted to DR under this Agreement and the agreement DR has (or will have) with the Brand. If the Brand terminates its Agreement with DR for any reason, DR will be unable to perform the Solution as it relates to that Brand and DR may terminate this Agreement with you as it relates to such Brand, without any liability to you. Following any notice of termination or non-renewal, we may create a deposit from remaining payments due to you in an amount we reasonably estimate to cover potential liabilities associated with providing the services set forth in this Agreement that may occur following the effective date of termination (the “Wind-down Deposit”). After termination of this Agreement, we will release portions of the Wind-down Deposit in monthly steps, as determined in our sole discretion, to account for the decrease in risk exposure until the full Wind-down Deposit is released, no later than one hundred and eighty (180) days following the termination of this Agreement.

20. Additional Services – Physical Product(s). The following sections apply if the product(s) DR resells include physical product(s). The type of product(s) (digital, physical, or services) DR offers for sale to shoppers under the Agreement will be specified in a Registration Form.

21. Optional Services – Fulfillment Services. The following sections apply if you are using DR’s Fulfillment Services for physical products as indicated in a Registration Form.

1. Carrier/Freight costs. All carrier and freight related costs, surcharges, failed delivery returns administration, failed delivery returns freight and all other fulfillment related costs are required to be fully disclosed by you up front to DR via e-mail. These costs are consolidated and presented to the shopper on the e-commerce store. It is essential that there are no hidden costs as DR cannot recoup any costs that are not provided during the shopper purchase. You will invoice DR the agreed Freight costs on a monthly basis in the agreed Monthly Summary Invoice Report (based on the Invoice Payment Exhibit-Sample Monthly Invoice Summary Report). The shipping price will be invoiced together with each order and will be seen in each invoice as a separate field from the price of the products. This will be reflected in the monthly billing report. DR will be responsible for Freight out and failed delivery returns cost only, and you will assume all other relevant costs, unless agreed in writing by both parties. You must provide all Freight Cost increases to DR with at least 30 days’ advance written notice of the increase.

2. Product Cost. You will provide prices to DR via the catalog file integration on a daily basis. Within the shipment confirmation file that is passed to DR for individual orders, you must include a field at the line-item level thatrepresents the cost of the product you will invoice to DR.

3. Payment Terms. In order to minimize administrative burden on both parties, DR will process and pay invoices from a Monthly Summary Invoice Report that you will provide to DR. You must provide the Monthly Summary Invoice Report in a format that meets the requirements of DR’s finance team (in accordance with the Invoice Payment Exhibit-Sample Monthly Invoice Summary Report. If DR identifies any errors or discrepancies in your Monthly Summary Invoice Report, you must resolve them within two (2) Business Days of receipt of notice from DR. You must invoice all costs within three (3) months of the date of when the cost was incurred. Any requests for payment of costs outside this period will be at DR’s discretion. You must provide the first Monthly Summary Invoice Report to DR by Business Day 1. DR will process all invoices pursuant to the Monthly Summary Invoice Report within twenty-five (25) calendar days after DR’s receipt of the Monthly Summary Invoice Report. Payment terms will then be thirty (30) days form the date the invoice is processed by DR. You acknowledge this will result in invoices going past the thirty (30) day period and you agree you will not apply any penalties, credit hold, shipment hold or other restrictions that would impact the shipping of orders. This process may be revised anytime upon mutual agreement, and in such case the mutually agreed revisions will become effective one month after the last Monthly payment DR has processed.

Required Summary Invoice Report Fields:

Shopper PO Number (Digital River Order ID)

VAT Number Invoice FROM

VAT Number Invoice TO

Invoice/CR Note Number

Invoice Date

SKU

Product Description

Ship Quantity

Unit Price

Unit Price x Quantity Amount

Freight

VAT

Total including VAT

Currency

Effective as of July 15, 2020

These Standards apply to the Solutions and are in addition to the terms in the Agreement. Capitalized terms used in these Standards have the same meaning as they do in the Agreement. These Standards are dependent upon your compliance with the best practices for your integration and platform usage, as defined in the Guidelines and Best Practices for the Solution you select, and upon your compliance with your responsibilities as defined in these Standards.

Service Levels

1. Uptime. The Solution under the Agreement is available at least 99.9% of the time measured over each calendar Quarter (January 1, April 1, July 1, October 1). Availability is calculated separately by platform in accordance with the following formula: Availability formula
   Availability = total minutes per quarter - total minutes unavailable per quarter
(Total minutes per Quarter)
2. Limitation: This availability commitment only applies if your usage is less than:
   1. 1,000,000 milliseconds of compute time per five (5)-minute interval; and
   2. 6,000,000,000 milliseconds of compute time per month.
3. Unavailability. A “service interruption” is any time exceeding five (5) consecutive minutes where our Order Takers (a) do not respond to any valid shopper request, or (b) provide only HTTP response codes 500, 502, 503, or 504 responses to all valid shopper requests, or (c) some combination of (a) and (b).“Order Taker” is defined as those systems within our checkout flow which respond to web requests.A period of “unavailability” (i) commences as of the earlier of the time we detect an incidence of a service interruption or the time that you notify us of the service interruption, and (ii) ends when our Order Takers commence providing routine responses to your shopper requests again. Unavailability shall be monitored by us.Unavailability shall not include any interruption arising from:
   1. scheduled maintenance and/or upgrades, including any redundant environments,
   2. your failure to follow the Guidelines and Best Practices,
   3. our suspension or termination of your right to use the Solution in accordance with the Agreement, or
   4. any event beyond our control, which includes without limitation any external interruption of power or telecommunications; denial of service, virus/worm or other attack; the failure or substantial failure of the Internet; the internet service provider or internal telecommunications equipment experienced by you or any of your customers; the browser configurations, hardware and/or software of you or any shopper; and/or any other force majeure event (including without limitation acts of God, terrorism, natural disaster, war, riots, and labor strife).

   We use all reasonable efforts to avoid having to take any redundant environments offline for executing schedule maintenance. Should under exceptional circumstances such maintenance nevertheless prove necessary, we will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential transactions.

4. Shared Responsibility to Mitigate Risk. Security and compliance are a shared responsibility between us and you.We are responsible for taking reasonable precautions to mitigate the risk of unavailability, including but not limited to (a) use of anti-virus and anti-trojan software; (b) installation of available hardware and software patches; (c) implementation of industry standard security measures, such as firewall-based network segmentation, intrusion detection, and anti-dedicated denial of service (“anti-DDOS”) measures; (d) implementation of business continuity and disaster recovery measures, such as application redundancy and scheduled backups; and (e) maintaining redundant infrastructure providers.You are responsible for taking reasonable precautions to mitigate the risk of unavailability of the Solution to you, including but not limited to: (i) implementing proper input filtering, (ii) applying intrusion detection and web application firewall (WAF) practices, (iii) applying anti-DDOS measures, (iv) jointly investigating and resolving security and compliance issues as they impact both you and us from time to time, and (v) properly interpreting HTTP response code 429 from the Solution and waiting the directed amount of time before retrying the intended request.
5. Business Continuity and Disaster Recovery. We maintain a business continuity and disaster recovery plan designed to minimize the impact to our operations of a man-made or natural disaster or other similar events which could impact our business operations and/or technology infrastructure. We annually test our ability to comply with our business continuity and disaster recovery plan and will make our results available upon request.
6. Issue Resolution. We target resolution of issues, based on their severity. In the event an issue could be classified within more than one Severity Level, we shall initially classify the issue; in addition, we may, upon notice to you, reclassify the priority level of an issue as fixes are rendered and/or developed or the severity of the issue decreases. In the event you disagree with our classification or reclassification, as appropriate, you may contact us to discuss when a further reclassification of the issue is appropriate.

   Severity Level	Description
   Level 1	Impact: Critical Our Classification: Solution is down Acknowledgment: As soon as possible (dependent on circumstances) Issue Resolution: As soon as possible (dependent on circumstances)
   Level 2	Impact: High Our Classification: Disruptive problem to the Solution impacting performance or availability Acknowledgment: Within twenty-four (24) hours Issue Resolution: As soon as possible (dependent on circumstances)
   Level 3	Impact: Medium Our Classification: Some impact to the Solution; however, not vital to immediate performance or availability Acknowledgment: Within two (2) business days Issue Resolution: Within 5-10 business days of Acknowledgment, unless notified otherwise
   Level 4	Impact: Low Our Classification: Minimal impact to the Solution Acknowledgment: Within two (2) business days Issue Resolution: We will evaluate and incorporate into maintenance release as we deem appropriate

   For the purposes of this table, the “Acknowledgment” is the time from when we first learn of a problem to when we initially contact to you by email or telephone acknowledging such reported issue; and “Issue Resolution” is when we substantially resolve the issue or begin a plan to resolve the issue, whichever occurs first.

7. Remedies. If we fail to meet our availability commitment in any calendar quarter during which we were compensated for your use of the Solution, your sole and exclusive remedy is a service level credit as follows, subject to your rights in case of a continuous failure as described in section 8 below. The service level credit is calculated by applying the service credit percentage to the charges we earned and received less the cost of payment processing for transactions we processed during that calendar quarter for your use of the Solution. We will apply any service credits only against future Solution charges otherwise due from you. Service credits will not entitle you to any refund or other payment from us. Subject to section 8 below, the foregoing is your sole and exclusive remedy for our breach.

   Quarterly Uptime Percentage	Service Credit Percentage
   Less than 99.9% but greater than or equal to 99.0%	10%
   Less than 99.0% but greater than or equal to 95.0%	25%
   Less than 95.0%	50%

    

   1. Remedy Procedure. To receive a service credit, you must submit a claim by opening a case with our Customer Success Team. To be eligible, we must receive your credit request within 30 days’ after the end of the calendar quarter in which the service level commitment was not met and must include:
      1. the words “SLA Credit Request – Solution” in the subject line;
      2. the dates and times of each period of unavailability that you are claiming;
      3. the calendar quarter with respect to which you are claiming service credits;
      4. Your request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in the logs should be removed or replaced with asterisks).

      If we confirm the Quarterly Uptime Percentage is less than our service commitment, then we will issue you a service credit within one billing cycle following the quarter in which we confirm your request. If you don’t provide your request and other information needed above, you will be disqualified from receiving a service credit.

8. Alternative Remedy in Case of Continuous Failure. Should we fail to meet our availability commitment in any two (2) consecutive calendar quarters during which we were compensated for your use of the Solution, you shall, as an alternative remedy, be entitled to terminate the Agreement upon thirty (30) days’ prior written notice to us. For the avoidance of doubts, in case you decide to terminate the Agreement based on this provision you shall not be entitled to receive additional service credits for the calendar quarter giving rise to such termination right.In the event you fail to provide us with notice of such termination within forty-five (45) calendar days of the end of the calendar quarter giving rise to such termination right, you shall be deemed to have waived its right to terminate the Agreement for such failure (but shall have the right to so terminate if the condition is met in any subsequent two (2) calendar quarters).

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

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.

These Terms were last updated on May 9, 2023.

1. General Terms and Conditions.

2. Global Seller Services Terms and Conditions.

3 Distributor Relationship.

Effective as of July 15, 2020

These Standards apply to the Solutions and are in addition to the terms in the Agreement. Capitalized terms used in these Standards have the same meaning as they do in the Agreement. These Standards are dependent upon your compliance with the best practices for your integration and platform usage, as defined in the Guidelines and Best Practices for the Solution you select, and upon your compliance with your responsibilities as defined in these Standards.

Service Levels

1. Uptime. The Solution under the Agreement is available at least 99.9% of the time measured over each calendar Quarter (January 1, April 1, July 1, October 1). Availability is calculated separately by platform in accordance with the following formula: Availability formula
   Availability = total minutes per quarter - total minutes unavailable per quarter
(Total minutes per Quarter)
2. Limitation: This availability commitment only applies if your usage is less than:
   1. 1,000,000 milliseconds of compute time per five (5)-minute interval; and
   2. 6,000,000,000 milliseconds of compute time per month.
3. Unavailability. A “service interruption” is any time exceeding five (5) consecutive minutes where our Order Takers (a) do not respond to any valid shopper request, or (b) provide only HTTP response codes 500, 502, 503, or 504 responses to all valid shopper requests, or (c) some combination of (a) and (b).“Order Taker” is defined as those systems within our checkout flow which respond to web requests.A period of “unavailability” (i) commences as of the earlier of the time we detect an incidence of a service interruption or the time that you notify us of the service interruption, and (ii) ends when our Order Takers commence providing routine responses to your shopper requests again. Unavailability shall be monitored by us.Unavailability shall not include any interruption arising from:
   1. scheduled maintenance and/or upgrades, including any redundant environments,
   2. your failure to follow the Guidelines and Best Practices,
   3. our suspension or termination of your right to use the Solution in accordance with the Agreement, or
   4. any event beyond our control, which includes without limitation any external interruption of power or telecommunications; denial of service, virus/worm or other attack; the failure or substantial failure of the Internet; the internet service provider or internal telecommunications equipment experienced by you or any of your customers; the browser configurations, hardware and/or software of you or any shopper; and/or any other force majeure event (including without limitation acts of God, terrorism, natural disaster, war, riots, and labor strife).

   We use all reasonable efforts to avoid having to take any redundant environments offline for executing schedule maintenance. Should under exceptional circumstances such maintenance nevertheless prove necessary, we will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential transactions.

4. Shared Responsibility to Mitigate Risk. Security and compliance are a shared responsibility between us and you.We are responsible for taking reasonable precautions to mitigate the risk of unavailability, including but not limited to (a) use of anti-virus and anti-trojan software; (b) installation of available hardware and software patches; (c) implementation of industry standard security measures, such as firewall-based network segmentation, intrusion detection, and anti-dedicated denial of service (“anti-DDOS”) measures; (d) implementation of business continuity and disaster recovery measures, such as application redundancy and scheduled backups; and (e) maintaining redundant infrastructure providers.You are responsible for taking reasonable precautions to mitigate the risk of unavailability of the Solution to you, including but not limited to: (i) implementing proper input filtering, (ii) applying intrusion detection and web application firewall (WAF) practices, (iii) applying anti-DDOS measures, (iv) jointly investigating and resolving security and compliance issues as they impact both you and us from time to time, and (v) properly interpreting HTTP response code 429 from the Solution and waiting the directed amount of time before retrying the intended request.
5. Business Continuity and Disaster Recovery. We maintain a business continuity and disaster recovery plan designed to minimize the impact to our operations of a man-made or natural disaster or other similar events which could impact our business operations and/or technology infrastructure. We annually test our ability to comply with our business continuity and disaster recovery plan and will make our results available upon request.
6. Issue Resolution. We target resolution of issues, based on their severity. In the event an issue could be classified within more than one Severity Level, we shall initially classify the issue; in addition, we may, upon notice to you, reclassify the priority level of an issue as fixes are rendered and/or developed or the severity of the issue decreases. In the event you disagree with our classification or reclassification, as appropriate, you may contact us to discuss when a further reclassification of the issue is appropriate.

   Severity Level	Description
   Level 1	Impact: Critical Our Classification: Solution is down Acknowledgment: As soon as possible (dependent on circumstances) Issue Resolution: As soon as possible (dependent on circumstances)
   Level 2	Impact: High Our Classification: Disruptive problem to the Solution impacting performance or availability Acknowledgment: Within twenty-four (24) hours Issue Resolution: As soon as possible (dependent on circumstances)
   Level 3	Impact: Medium Our Classification: Some impact to the Solution; however, not vital to immediate performance or availability Acknowledgment: Within two (2) business days Issue Resolution: Within 5-10 business days of Acknowledgment, unless notified otherwise
   Level 4	Impact: Low Our Classification: Minimal impact to the Solution Acknowledgment: Within two (2) business days Issue Resolution: We will evaluate and incorporate into maintenance release as we deem appropriate

   For the purposes of this table, the “Acknowledgment” is the time from when we first learn of a problem to when we initially contact to you by email or telephone acknowledging such reported issue; and “Issue Resolution” is when we substantially resolve the issue or begin a plan to resolve the issue, whichever occurs first.

7. Remedies. If we fail to meet our availability commitment in any calendar quarter during which we were compensated for your use of the Solution, your sole and exclusive remedy is a service level credit as follows, subject to your rights in case of a continuous failure as described in section 8 below. The service level credit is calculated by applying the service credit percentage to the charges we earned and received less the cost of payment processing for transactions we processed during that calendar quarter for your use of the Solution. We will apply any service credits only against future Solution charges otherwise due from you. Service credits will not entitle you to any refund or other payment from us. Subject to section 8 below, the foregoing is your sole and exclusive remedy for our breach.

   Quarterly Uptime Percentage	Service Credit Percentage
   Less than 99.9% but greater than or equal to 99.0%	10%
   Less than 99.0% but greater than or equal to 95.0%	25%
   Less than 95.0%	50%

    

   1. Remedy Procedure. To receive a service credit, you must submit a claim by opening a case with our Customer Success Team. To be eligible, we must receive your credit request within 30 days’ after the end of the calendar quarter in which the service level commitment was not met and must include:
      1. the words “SLA Credit Request – Solution” in the subject line;
      2. the dates and times of each period of unavailability that you are claiming;
      3. the calendar quarter with respect to which you are claiming service credits;
      4. Your request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in the logs should be removed or replaced with asterisks).

      If we confirm the Quarterly Uptime Percentage is less than our service commitment, then we will issue you a service credit within one billing cycle following the quarter in which we confirm your request. If you don’t provide your request and other information needed above, you will be disqualified from receiving a service credit.

8. Alternative Remedy in Case of Continuous Failure. Should we fail to meet our availability commitment in any two (2) consecutive calendar quarters during which we were compensated for your use of the Solution, you shall, as an alternative remedy, be entitled to terminate the Agreement upon thirty (30) days’ prior written notice to us. For the avoidance of doubts, in case you decide to terminate the Agreement based on this provision you shall not be entitled to receive additional service credits for the calendar quarter giving rise to such termination right.In the event you fail to provide us with notice of such termination within forty-five (45) calendar days of the end of the calendar quarter giving rise to such termination right, you shall be deemed to have waived its right to terminate the Agreement for such failure (but shall have the right to so terminate if the condition is met in any subsequent two (2) calendar quarters).

STANDARD CONTRACTUAL CLAUSES

controller to controller

Section I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in 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 8.5 (e) and Clause 8.9(b);

(iii) Clause 12(a) and (d);

(iv) Clause 13;

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

(vi) Clause 16(e);

(vii) 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        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. It may only process the personal data for another purpose:

(i) where it has obtained the data subject’s prior consent;

(ii) where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iii) where necessary in order to protect the vital interests of the data subject or of another natural person.

8.2        Transparency

(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:

(i) of its identity and contact details;

(ii) of the categories of personal data processed;

(iii) of the right to obtain a copy of these Clauses;

(iv) where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.

(b) Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.

(c) On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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.

(d) Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.3        Accuracy and data minimisation

(a) Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.

(b) If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.

(c) The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.

8.4        Storage limitation

The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation[1] of the data and all back-ups at the end of the retention period.

8.5        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 personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. 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.

(b) The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

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

(d) 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 personal data breach, including measures to mitigate its possible adverse effects.

(e) In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.

(f) In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.

(g) The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.

8.6        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 or offences (hereinafter ‘sensitive data’), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.

8.7        Onward transfers

The data importer shall not disclose the personal data to a third party located outside the European Union(3)(in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:

(i) it 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 of Regulation (EU) 2016/679 with respect to the processing in question;

(iii) the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;

(iv) it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;

(v) it is necessary in order to protect the vital interests of the data subject or of another natural person; or

(vi) where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.8        Processing under the authority of the data importer

The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.

8.9        Documentation and compliance

(a) Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.

(b) The data importer shall make such documentation available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

N/A

Clause 10

Data subject rights

(a) The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request.[2] The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.

(b) In particular, upon request by the data subject the data importer shall, free of charge:

(i) provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);

(ii) rectify inaccurate or incomplete data concerning the data subject;

(iii) erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.

(c) Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.

(d) The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter ‘automated decision’), which would produce legal effects concerning the data subject or similarly significantly affect him/her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:

(i) inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and

(ii) implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.

(e) Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.

(f) The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.

(g) If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.

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.

(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) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under Regulation (EU) 2016/679.

(c) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(d) The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

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

Clause 13

Supervision

(a) See Order Form.

(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[3];

(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 Order Form

Address: See Order Form.

Contact person’s name, position and contact details: See Order Form.

Activities relevant to the data transferred under these Clauses: See Order Form.

Signature and date: See Order Form.

Role (controller/processor): See Order 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 Order Form

Address: See Order Form

Contact person’s name, position and contact details: See Order Form.

Activities relevant to the data transferred under these Clauses: See Order Form.

Signature and date: See Order Form.

Role (controller/processor): See Order Form.

B. Description of transfers

Categories of data subjects whose personal data is transferred

• Shoppers and other persons (e.g., third parties) who do, or might do, business with the parties so as to conduct its business.
• The parties’ employees and/or contractors who assist with the business relationship.

Categories of personal data transferred

• Personal data from Shoppers such as information that can be used to identify an individual, either alone or in combination with other information available to the parties, such as a name, shipping or billing address, e-mail address, and phone number.
• Contact and title information of employees and contractors who assist with the business relationship.

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.

• For clarity, the parties understand and agree that any 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) will be exclusively received and handled by Digital River and not be made available to you. As such, sensitive data will not be transferred between Digital River and 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 contract.

Nature of the processing

• Importer will process data for the as necessary to perform its obligations under the primary agreement with exporter, for fulfilling Shopper transactions, collecting payments, conducting fraud screening, providing support to shoppers, preventing, detecting, or investigating fraud, employing independent fraud modeling, detection, and risk analytics, payment optimization, and generally complying with its contractual or other obligations to the shopper and complying with its legal obligations.

Purpose(s) of the data transfer and further processing

• To permit importer to comply with its obligations under the primary agreement with exporter and to complete sales transaction with shoppers seeking to purchase exporter’s goods and services.

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

• Digital River will retain the data for as long as necessary to comply with its legal obligations as merchant and seller of record.

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

• Not applicable.

C. Competent supervisory authority

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

• See Order Form.

Annex II

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

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

Measures for ensuring physical security of locations at which personal data are processed:

• Admission control system, document reader (magnet / chip card)
• Door locks (electric door opener, number lock, etc.)
• Protected doors / windows
• Key administration / documentation of distribution of keys
• Alarm system
• Video surveillance
• Special protective measures for the server room
• Special protective measures for archiving back-ups and / or other data carriers
• Employee and authorisation documents
• Restricted areas
• Visitor rules (e.g . pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit)

Measures for user identification and authorisation

• Personal and individual user log-in for registration in the systems or company network
• Authorization process for access authorizations
• Limitation of authorized users
• Single sign-on
• Two factor authentication
• BIOS passwords
• Password procedures (indication of password parameters with regard to complexity and length)
• Automated blocking of access for a certain time period in case of repeated incorrect entry of access data
• Electronic documentation of passwords and protection of this documentation against unauthorized access
• Additional system log-in for certain applications
• Automatic blocking of clients after a certain period of user inactivity (also password-protected screensaver or automatic stand-by)
• Firewall
• System-specific protection against attacks / intrusion detection / intrusion prevention

Measures for internal IT and IT security governance and management

• Administration and documentation of differentiated permissions
• Authorization process for permissions
• Profiles / roles
• Regular checks on the authorization of permissions in accordance with the “need to know” principle
• Encryption of CD / DVD-ROM, external hard disks and / or laptops (e.g. per operating system)
• Measures to prevent unauthorized overwriting of data on externally used data carriers (e.g, copy protection, blocking of USB ports, “Data Loss Prevention (DLP) system”)
• Segregation of duties
• Irreversible deletion of data carriers

Measures for ensuring events logging

• Logging of access
• Logging the copying, editing or removal of data
• System-side logging
• Security / logging software
• Logging / documentation of deletions
• Evaluations / logging of data processing operations

Measures for ensuring accountability

• Procedures for regular controls / audits
• Risk Assessment
• Processes for ensuring segaration of duties

Measures of pseudonymisation and encryption of personal data and Measures for the protection of data during storage

• Encryption of laptops
• Encryption of files
• Encryption of systems / assets
• Encrypted storage of passwords
• Secured WLAN
• Use of employee numbers instead of names
• Authorization processes or approval routines for permission to process additional information for identification purposes

Measures for the protection of data during transmission

• Encryption of emails and email attachments
• Secured data sharing (e.g., SSL, FTPS, TLS)

Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services

• Access rights
• Functional responsibilities, organizationally specified responsibilities
• Tunnelled remote data connections (VPN = virtual private network)
• “Data Loss Prevention System” (DLP)
• Redundant power supply
• Sufficient capacity of IT systems and assets
• Redundant systems / assets
• Resilience and error management

Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident

• Data security concept for software and IT applications
• Back-up processes
• Ensuring data storage in secured network
• Need-based installation of security updates
• Installation of an uninterruptible power supply
• Fire and / or extinguishing water protection of the server room
• Fire and / or extinguishing water protection of the archiving premises
• Air conditioned server room
• Virus protection
• Firewall
• Emergency plan
• Successful emergency exercises

Measures for ensuring limited data retention

• Policies for data retention / erasure

Measures for ensuring data quality and Measures for certification/assurance of processes and products

• Procedures for regular controls / audits
• Concept for regular review, assessment and evaluation
• Penetration tests
• Emergency tests
• Certification: SOC 1, SOC 2 and PCI-DSS

Presence of recognized certificates related to the abovementioned requirements (e. g. ISO 27000 series):

• SOC 1
• SOC 2
• PCI-DSS
• PrivacyMark

[1]  This requires rendering the data anonymous in such a way that the individual is no longer identifiable by anyone, in line with recital 26 of Regulation (EU) 2016/679, and that this process is irreversible.

[2]  That period may be extended by a maximum of two more months, to the extent necessary taking into account the complexity and number of requests. The data importer shall duly and promptly inform the data subject of any such extension.

[3]  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 Controller

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 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 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 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 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 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 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 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 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 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 2.
29.2 If the ICO issues a revised Approved IDTA under Section 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 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 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);
• Section 3 (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 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 jurisdictionover 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

Data Handling Standards

Effective as of August 12, 2022

These Standards are in addition to the terms in the Agreement. Words used in these Standards with an initial capital letter have the same meaning (i) as defined in these standards in Section 13 “Definitions;” (ii) as found in the EU General Data Protection Regulation (GDPR); (iii) as found in the California Consumer Privacy Act (CCPA); or (iv) as found in the Agreement. Where a term in these Standards conflicts with a corresponding term in the Agreement, the term in these Standards will control with respect to the parties’ obligations under these Standards.

1. Background and Purpose. Each party is responsible for privacy, data security, and compliance with any global Data Protection Legislation that may apply to your commerce solution. These Standards were created to allow us to have an open data sharing arrangement with you. The purpose is to ensure that any transfers of data between the parties are completed using appropriate safeguards, and that each party understands its obligations under Data Protection Legislation. Here, we have laid out the obligations of each party, including our respective responsibilities under Data Protection Legislation.

2. Obligations of the Parties. You and we will each maintain the responsibility of being an (Independent) Data Controller for Personal Data. As such, each party is responsible for ensuring that Personal Data is Processed according to Data Protection Legislation and that there is a lawful basis for its Processing activities.

3. Description of Personal Data and Purpose of Processing. Each party will process Personal Data of those purchasers that purchase a title, license right, and/or usage right to a product using our Service (the “Shopper”). Those categories of Personal Data may include names, addresses, email addresses, phone numbers, IP addresses, and other related transaction information.

The Personal Data will be processed independently by each party for the following purposes:

•  To provide the Shoppers with the services they have requested, in accordance with the relevant party’s privacy policy,
• To ensure the performance of the parties’ obligations under the Agreement,
•  To provide other similar services to Shoppers where the Shoppers have, if applicable, consented to such services, and as decided by each party as its own (Independent) Data Controller,
•  To share the data with third parties, Service Providers, and use Processors to process the data so long as the parties comply with Data Protection Legislation; and
• Digital River agrees that it will only independently process the Shopper Personal Data for the following purposes: performing its obligations under the Agreement, fulfilling Shopper transactions, collecting Shopper payments, conducting fraud screening, providing support to Shoppers, preventing, detecting, or investigating fraud, employing independent fraud modeling, detection, and risk analytics, payment optimization, and generally complying with its contractual or other obligations to the Shopper and complying with its legal obligations. For clarity, DR will not process Shopper Personal Data to market to end users.

For the avoidance of doubt, the parties agree that neither party receives valuable consideration for, and no Sale has occurred as a result of the transfer of data from one party to another. Any transfer of data between the parties is done for the purpose of fulfilling and processing shopper-initiated transactions and for providing related support.

4. Information Provided to Shoppers. The parties agree to include the applicable link to each party’s privacy policy, prior to the collection by such party, of the Shopper’s Personal Data, so that it is clear to the Shopper which privacy policy applies to the processing of their data. For the avoidance of doubt, your privacy policy will govern how you will process Personal Data and ours will govern how we will process Personal Data. We are each responsible for fulfilling our promises as outlined in our respective privacy policies.
Where applicable, you will gather and document the applicable consents from Shoppers for the processing of their data, such as for marketing activities. And, where there is another lawful basis for the processing (such as “Legitimate Interests”) you will also document the applicable lawful basis and your reasoning behind such decision(s).

5. Data Handling Requests; Notifying the Other party. Data Protection Legislation, such as GDPR and CCPA, grants Shoppers certain rights regarding their personal data that a Data Controller holds and obligates Data Controllers to facilitate the exercise of those rights. As such, each party is responsible for facilitating the exercise of Shoppers’ rights under applicable law and must send any applicable data handling requests to the other party without undue delay.

Such rights may include the right to consent, and to withdraw the consent, the right of access, rectification, restriction of Processing, erasure, data portability, and the right to object to Processing. It is up to each party to ensure the Shoppers’ rights are honored as appropriate, considering applicable legal requirements. It is also each party’s responsibility to ensure that the Shopper has been appropriately authenticated under Data Protection Legislation prior to acting on any access request.

Specifically, as it relates to data erasure requests from a Shopper, we request that you log into our administration interface software (or successor user interface) and click on the “Request Removal of Personal Information” button, which will automatically trigger a notification to us. You may also send any communications related to such data handling requests to the Digital River contact point(s) noted in the Order Form under “Privacy.”

6. Security of Personal Data. Each party agrees to take reasonable steps to provide a level of security appropriate to the sensitivity of the Personal Data in each party’s control.

•  Each party represents, warrants and covenants to the other party that (i) it has implemented technical and organizational security measures, which meet industry standards and comply with all applicable Data Protection Legislation, to prevent any unauthorized access, use or disclosure of Personal Data, and (ii) its processing of Personal Data will at all times be performed in accordance with such technical and organizational security measures; and
•  Each Party represents and warrants that it has in place and in writing a business continuity and disaster recovery plan; and
• To the extent required by applicable law, the parties will not transfer the Personal Data to a processor, vendor, service provider, subcontractor or sub-processor (a “Processor”), unless (i) it has first concluded a written agreement with the Processor that imposes obligations and restrictions on the third-party at least as restrictive as those that apply to the other party under these Standards (“Processing Agreements”), and (ii) such transfer complies with applicable Data Protection Legislation; and
• The party who has transferred Personal Data to the Processor shall be liable for the acts or omissions of that Processor with respect to Personal Data.

7. Security Breach. With respect to any Security Breach, the parties will take all steps reasonably necessary to (i) investigate and remediate the effects of such occurrence, (ii) mitigate any harm to those Shoppers that are affected or could be affected by such occurrence, (iii) prevent the re-occurrence, and (iv) comply with applicable Data Protection Legislation.

Each party shall notify the other party in writing or by phone (for Digital River, the phone number is 952-253-1234, attention: Legal) after becoming aware of any compromise of the Personal Data that may affect the other party. The responsible party shall also notify the Supervisory Authority and Shoppers, where required and within the applicable time period under Data Protection Legislation. As such, the parties will coordinate with, consult with and keep the other party regularly informed related to its response to any Security Breach.

8. Transfers of Personal Data Outside of the EEA or United Kingdom. A party shall not transfer Personal Data (nor permit any Personal Data to be transferred) to a territory outside of the EEA or the United Kingdom unless it has taken such measures as are necessary to ensure the transfer complies 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 written 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 the Agreement involves the transfer of 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-commerce-connector-solutions/), plus the relevant Privacy Details in the Order 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-commerce-connector-solutions/), plus the relevant Privacy Details in the Order 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 Controllers established in third countries found in the European Commission’s Decision 2004/915/EC of 27 December 2004 plus the Privacy details in the Order 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 Standard Contractual Clauses apply pursuant to this Clause, if there is any conflict between these Standards and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

9. Liabilities and Indemnification. Each party agrees to be held solely liable for the performance of its obligations under Data Protection Legislation and these Standards, and any costs associated with a party’s failure to comply with Data Protection Legislation and these Standards, including any fines imposed by a Supervisory Authority (or its equivalent), shall be paid by the party that failed to comply.
While nothing in the Agreement or these Standards shall be construed as making the parties, acting as (Independent) Data Controllers, involved in the same processing, should, pursuant to Article 82(4) of the GDPR, a party be found to be liable for the entire damage arising from a breach or breaches of the GDPR relating to activities under these Standards, in order to ensure effective compensation of one or more individuals, then that party shall indemnify the other party for that portion of the compensation attributable to any breaches of the GDPR for which it is responsible.

10. Requests from Supervisory Authorities. The parties agree to cooperate with each other when they receive a request from a Supervisory Authority or court of law that impacts the other party. Where one party receives the request (the “Receiving Party”), the Receiving Party shall communicate the request to the other party promptly, and where possible, prior to responding to the Supervisory Authority or court of law. However, if this is not possible due to the immediacy of the request, the Receiving Party shall communicate the request to the other party as soon as reasonably possible after submission of the response.

11. Survival of these Standards. 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 Standards 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 Standards will terminate. Also, and for the avoidance of doubt, each party is responsible for destroying the Personal Data in accordance with applicable laws and neither party is required to return to the other party the Personal Data that is in their possession.

12. Applicable Law and Dispute Resolution. These Standards (including the Agreement) constitute the entire agreement between the parties with respect to the subject matter hereof, and these Standards supersede all prior agreements or representations, oral or written, regarding such subject matter. These Standards 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 in Clause IV, “Law applicable to the clauses.”

13. Definitions. The following definitions apply to these Standards:

• 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 of California residents which became effective on January 1, 2020, and any subsequent modifications or amendments.
• Data Protection Legislation means any applicable data protection, security, consumer protection and related regulatory and legal obligations globally, including, but not limited to, the CCPA and the GDPR, 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 Interest means that processing is permitted if it is necessary for the purposes of a legitimate interest 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 which require protection.
•  Sale means any activity that qualifies as “sell,” “selling,” “sale,” or “sold,” under the CCPA.
• Standard Contractual Clauses are the contractual requirements approved by a relevant authority to ensure the appropriate data protection safeguards are in place in the event of the international transfer of Personal Data.