Data Processing Agreement
This Data Processing Agreement (“DPA”) forms an integral part of, and supplements, the Scalarr Services Agreement available at https://scalarr.io/document/services_agreement/, as updated from time to time (“Agreement”). This DPA is entered into by and between Scalarr Inc., (hereinafter referred to as “Processor”) and Customer under the Agreement (hereinafter referred to as “Controller” or “Customer”) in case the GDPR applies to use of the Scalarr Services to process Personal Data Controller and Processor are hereinafter jointly referred to as the “Parties”.
All capitalised terms not defined herein shall have the meaning set forth in the Agreement.
In the course of providing the services to Customer pursuant to the Agreement, Processor may Process Personal Data on behalf of Controller and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
In addition to capitalized terms defined elsewhere in this DPA, the following terms shall have the meanings set forth opposite each one of them:
1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 "European Affiliates" means any Affiliate of Controller that is established in the European Economic Area, Switzerland or the United Kingdom.
1.3 "Applicable Laws" means (a) European Union or Member State laws with respect to any Controller Personal Data that is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Controller Personal Data that is subject to any other Data Protection Laws.
1.4 "Controller Personal Data" means any Personal Data Processed by Processor on behalf of Controller pursuant to or in connection with the Agreement.
1.5 "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, any other federal, state, national or international data protection or privacy laws, including in the United States.
1.6 "EU Data Protection Laws" means (i) the GDPR; (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any and all applicable national data protection laws made under or pursuant to (i) or (ii); in each case as may be amended or superseded from time to time.
1.7 "GDPR" means EU General Data Protection Regulation 2016/679.
1.8 "Services" means the services that Processor provides to Controller or its Affiliates as described in the Services Agreement.
1.9 "Services Agreement" means the separate agreement or agreements pursuant to which Processor provides the Services.
1.10 "Sub Processor" means any person (including any third-party and any Processor Affiliate, but excluding an employee of Processor or any of its subcontractors) appointed by or on behalf of Processor or any Processor Affiliate to Process Personal Data on behalf of the Controller in connection with the Principal Agreement.
1.11 The terms, "Commission", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processor", "Processing" and "Supervisory Authority", and other words and expressions used in this Agreement but not defined herein shall have the same meaning as given to such words and expressions in the EU Directive 95/46/EC (“Directive”) or, from 25 May 2018, the General Data Protection Regulation (2016/679) (“GDPR”).
2. Processing of Controller Personal Data
2.1 Processor shall not Process Controller Personal Data other than on the Controller’s documented reasonable and customary instructions as specified in the Agreement or this DPA, unless such Processing is required by Data Protection Laws to which the Processor is subject. Processor shall immediately inform the Сontroller if, in its opinion, an instruction infringes GDPR.
2.2 Controller instructs Processor (and authorizes Processor to instruct each Sub Processor) to (i) Process Controller Personal Data for the purpose of providing the Services under the Agreement; and (ii) in particular, transfer Controller Personal Data to any country or territory, all as reasonably necessary for the provision of the Services and consistent with the and in accordance with EU Data Protection Laws.
2.3 Furthermore, Controller warrants and represents that it is and will remain duly and effectively authorized to give the instruction set out in Section 2.2 and any additional instructions as provided pursuant to the Agreement and/or in connection with the performance thereof, on behalf of itself and each relevant Controller Affiliate, at all relevant times and at least for as long as the Agreement is in effect and for any additional period during which Processor is lawfully processing the Controller Personal Data.
2.4 Controller sets forth the details of the Processing of Controller Personal Data, as required by article 28(3) of the GDPR in Schedule 1 (Details of Processing of Controller Personal Data), attached hereto.
3. Processor Personnel
Processor shall take reasonable steps to ensure that access to the Controller Personal Data is limited on a need to know/access basis, and that all Processor personnel receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access/use of Controller’s Personal Data.
Processor shall, in relation to the Controller Personal Data, implement appropriate technical and organizational measures in accordance with Article 32(1) of the GDPR. In assessing the appropriate level of security, Processor shall take into account the risks that are presented by Processing, in particular from a Personal Data Breach.
5. Sub Processing
5.1 Controller authorizes Processor and each Processor Affiliate to appoint (and permit each Sub Processor appointed in accordance with this Section 5 to appoint) Sub Processors in accordance with this Section 5 and any restrictions in the Agreement. Processor shall remain fully liable for any breach of this DPA and Data Protection Laws that is caused by an act, error or omission (failure to act) of its Sub Processors.
5.2 Processor and each Processor Affiliate may continue to use those Sub Processors already engaged by Processor or any Processor Affiliate as of the date of this DPA. It is acknowledged and agreed that as of the date of this DPA Processor uses Amazon Web Services, Hetzner Robot / Hetzner Cloud and Google Drive Services as Sub Processors for the purpose of cloud hosting services, which use is subject to the respective Amazon Web Services Inc., Hetzner Online GmbH and Google LLC, applicable guidelines.
5.3 Processor may appoint new Sub Processors and shall give at least seven (7) days' prior written notice of the appointment of any new Sub Processor, whether by general or specific reference to such Sub Processor (e.g., by name or type of service), including relevant details of the Processing to be undertaken by the new Sub Processor. If, within seven (7) days of such notice, Controller notifies Processor in writing of any objections (on reasonable grounds) to the proposed appointment, Processor shall not appoint for the processing of Controller Personal Data the proposed Sub Processor until reasonable steps have been taken to address the objections raised by Controller, and Controller has been provided with a reasonable written explanation of the steps taken. Where such steps are not sufficient to relieve Controller’s reasonable objections then Controller or Processor may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which require the use of the proposed Sub Processor without bearing liability for such termination.
5.4 With respect to each new Sub Processor, Processor shall:
5.4.1 Before the Sub Processor first Processes Controller Personal Data, take reasonable steps (for instance by way of reviewing privacy policies as appropriate) to ensure that the Sub Processor is committed to provide the level of protection for Controller Personal Data required by the Agreement; and
5.4.2 Ensure that the arrangement between the Processor and the Sub Processor is governed by a written contract, including terms which offer materially similar or higher level of protection for Controller Personal Data as those set out in this DPA that meet the requirements of Applicable Laws.
6. Data Subject Rights
6.1 Controller shall be solely responsible for compliance with any statutory obligations concerning requests to exercise Data Subject rights under Data Protection Laws (e.g., for access, rectification, deletion of Controller Personal Data, etc.). Taking into account the nature of the Processing, Processor shall reasonably endeavour to assist Controller insofar as feasible, to fulfil Controller's said obligations with respect to such Data Subject requests, as applicable, at Controller’s sole expense.
6.2 Processor shall:
6.2.1 Promptly notify Controller if it receives a request from a Data Subject under any Data Protection Law in respect of Controller Personal Data; and
6.2.2 Ensure that it does not respond to that request except on the documented instructions of Controller or as required by Data Protection Laws to which the Processor is subject, in which case Processor shall, to the extent permitted by Data Protection Laws, inform Controller of that legal requirement before it responds to the request.
7. Personal Data Breach
7.1 Processor shall notify Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Controller Personal Data, in connection with the Processing of such Controller Personal Data by the Processor or Processor Affiliates. In such event, Processor shall provide Controller with information (to the extent in Processor’s possession) to assist Controller to meet any obligations to inform Data Subjects or Data Protection Authorities of the Personal Data Breach under the Data Protection Laws.
7.2 At the written request of the Controller, Processor shall reasonably cooperate with Controller and take such commercially reasonable steps as are agreed by the Parties or necessary under Privacy Protection Laws to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
At the written request of the Controller, the Processor and each Processor Affiliate shall provide reasonable assistance to Controller, at Controller's expense, with any data protection impact assessments or prior consultations with Supervising Authorities or other competent data privacy authorities, as required under any applicable Data Protection Laws. Such assistance shall be solely in relation to Processing of Controller Personal Data by the Processor.
9. Deletion or Return of Controller Personal Data
9.1 Processor shall promptly and in any event within up to sixty (60) days of the date of cessation of any Services involving the Processing of Controller Personal Data (the "Cessation Date"), delete all copies of those Controller Personal Data, except such copies as authorized including under this DPA or required to be retained in accordance with Data Protection Laws.
9.2 Upon Controller’s prior written request, Processor shall provide written certification to Controller that it has complied with this Section 9.
10. Audit Rights
10.1 Subject to Sections 10.2 and 10.3, Processor shall make available to a reputable auditor mandated by Controller in coordination with Processor, upon prior written request, such information necessary to reasonably demonstrate compliance with this DPA, and shall allow for audits, including inspections, by such reputable auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Processor, provided that such third-party auditor shall be subject to confidentiality obligations.
10.2 Provisions of information and audits are and shall be at Controller’s sole expense, and may only arise under Section 10.1 to the extent that the Agreement does not otherwise give Controller information and audit rights meeting the relevant requirements of the applicable Data Protection Laws. In any event, all audits or inspections shall be subject to the terms of the Agreement, and to Processor's obligations to third-parties, including with respect to confidentiality. In the event that it is determined that incidents have occurred that necessitate the implementation or execution of additional security measures by Processor, the costs for such measures, as well as any costs related to the remediation of such incidents, will be borne entirely and exclusively by Processor.
10.3 Controller shall give Processor reasonable prior written notice of any audit or inspection to be conducted under Section 10.1 and shall use (and ensure that each of its mandated auditors uses) its best efforts to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Processors' premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. Controller and Processor shall mutually agree upon the scope, timing and duration of the audit or inspection in addition to the reimbursement rate for which Controller shall be responsible. Processor need not give access to its premises for the purposes of such an audit or inspection:
10.3.1 To any individual unless he or she produces reasonable evidence of identity and authority;
10.3.2 If Processor was not given a written notice of such audit or inspection at least 2 weeks in advance;
10.3.3 Outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Controller has given notice to Processor that this is the case before attendance outside those hours begins;
10.3.4 For premises outside the Processor's control (such as data storage farms of AWS)
10.3.5 For the purposes of more than one (1) audit or inspection, in respect of each Processor, in any calendar year, except for any additional audits or inspections which:
10.3.5.1 Controller reasonably considers necessary because of genuine concerns as to Processor’s compliance with this DPA; or
10.3.5.2 Controller is required to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Controller has identified its concerns or the relevant requirement or request in its prior written notice to Processor of the audit or inspection.
11. Data exports
11.1 Processor shall not Process (not permit any third party to Process) any Controller Personal Data outside of the European Economic Area unless (a) such Processing shall be conducted in a country which the European Commission has declared to have "adequate" data protection laws; or (b) the Processor has taken all such measures as are necessary to ensure that any such Processing of Controller Personal Data outside of the European Economic Area is compliance with EU Data Protection Laws.
11.2 In such event, the Parties agrees that the Standard Contractual Clauses attached ast Appendix 2 to this DPA shall apply.
12. General Terms
12.1 Governing Law and Jurisdiction.
12.1.1 The Parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
12.1.2 This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.
12.2 Order of Precedence. Nothing in this DPA reduces Processor’s obligations under the Agreement in relation to the protection of Personal Data or permits Processor to Process (or permit the Processing of) Personal Data in a manner, which is prohibited by the Agreement. This DPA is not intended to, and does not in any way limit or derogate from Controller’s own obligations and liabilities towards the Processor under the Agreement, and/or pursuant to the GDPR or any law applicable to Controller, in connection with the collection, handling and use of Personal Data by Controller or its Affiliates or other processors or their sub-processors, including with respect to the transfer or provision or Personal Data to Processor and/or providing access thereto to Processor.
12.3 Subject to this Section 12.2, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the Parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the Parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.
12.4 Changes in Data Protection Laws.
12.4.1 Controller may by at least forty-five (45) calendar days' prior written notice to Processor, request in writing any variations to this DPA if they are required, as a result of any change in, or decision of a competent authority under any applicable Data Protection Law, to allow Processing of those Controller Personal Data to be made (or continue to be made) without breach of that Data Protection Law; and
12.4.2 If Controller gives notice with respect to its request to modify this DPA under Section 11.4.1:
184.108.40.206 Processor shall make commercially reasonable efforts to accommodate such modification request, and
220.127.116.11 Controller shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect the Processor against additional risks, or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein.
12.5 If Controller gives notice under Section 11.4.1, the Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Controller's notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within 30 days, then Controller or Processor may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which are affected by the proposed variations (or lack thereof).
12.6 Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
List of Schedules:
Schedule 1: Details of the Processing
Schedule 2: Standard Contractual Clauses including
Appendix to the Standard Contractual Clauses
(Annex 1, Annex 2)
Details Of Processing Of Controller Personal Data
This Exhibit 1 includes certain details of the Processing of Controller Personal Data as required by Article 28(3) GDPR.
- Subject Matter and Duration. The subject matter and duration of the Processing of the Controller Personal Data are set out in the Agreement as references therein and this DPA.
- The Nature and Purpose. Rendering Services in the nature of analytics software that analyzes mobile advertising campaigns and detects unsolicited fraudulent installs, as detailed in the Scalarr Services Agreement.
- The types of Controller Personal Data to be processed are as follows: IP address, User agent, device identifiers such as:
- name(s), surname, correspondence address, business e-mail address, business telephone number (for Controller's personnel);
- IP address, User agent, device identifiers such as: IDFA (Identifier For Advertisers iOS), Android ID, Google Advertiser ID (GAID), store platform, SDK version, anonymous User ID, timestamp Developer Key, application version, device model, manufacture, OS version, network status (WiFi/3G), country and city information, post-install in-app events.
- The categories of Data Subject. Controller's personnel and natural persons Data Subjects who are end users of the Controller's mobile application services.
STANDARD CONTRACTUAL CLAUSES
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.
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.
Third-party beneficiary clause
(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:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8, Clause 8.1(b), 8.9(a), (c), (d) and (e);
- Clause 9, Clause 9(a), (c), (d) and (e);
- Clause 12 , Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18, Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(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.
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.
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 - optional
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing 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
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.
(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.
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.
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.
(a) 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 (4) (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.
Use of sub-processors
(a) 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 7 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. 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.
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) 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.
(c) 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.
(d) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
(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.
(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.
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose 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
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;
(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.
Obligations of the data importer in case of access by public authorities
(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 minimisation
(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.
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
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.
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Ireland.
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State .
(b) The Parties agree that those shall be the courts of the EU Member State in which the data exporter is established. If the data exported is established outside of the EU Member States such dispute shall be resolved by the courts of the Republic 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 to the Standard Contractual Clauses
A. LIST OF PARTIES
The entity identified as “Customer” in the DPA /Services Agreement and/or applicable Insertion Order.
Role (controller/processor): Controller.
Name: Scalarr Inc.
Address: 3500 South DuPont Hwy, Dover, DE 19901, USA
Contact person’s name, position and contact details: Inna Ushakova / CEO & President
Activities relevant to the data transferred under these Clauses: services aimed at detecting fraudulent installs in data exporter’s digital ads.
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred:
- Category A: Data exporter’s personnel.
- Category B: End users of Data exporter’s mobile application services;
Categories of personal data transferred:
- Category A: name(s), surname, correspondence address, business e-mail address, business telephone number.
- Category B: IP address, User agent, device identifiers such as: IDFA (Identifier For Advertisers iOS), Android ID, Google Advertiser ID (GAID), store platform, SDK version, anonymous User ID, timestamp Developer Key, application version, device model, manufacture, OS version, network status (WiFi/3G), county and city information, post-install in-app events.
The frequency of the transfer: on continuous basis.
Nature of the processing:
The personal data transferred will be subject to the following basic processing activities (please specify):
Сategory A: Storage, processing for relationship management and invoicing, deletion
Сategory A: Storage, analysis for the purpose of detecting fraudulent installs, transfers, storage, deletion
Purpose(s) of the data transfer and further processing: detecting fraudulent installs in digital ads.
The period for which the personal data will be retained: as long as it is required to fulfill the purpose of the processing.
Matter, nature and duration of the processing: provision of cloud hosing services, as long as it is required to fulfill the purpose of the processing.
C. COMPETENT SUPERVISORY AUTHORITY
Competent supervisory authorities: the EU Member State where the data exporter is established or (if the data exported is established outside of the EU Member States) supervisory authorities of the Republic of Ireland.
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
1.Physical access control
Measures to prevent unauthorized persons from gaining access to the data processing systems available in premises and facilities (including databases, application servers and related hardware), where data are processed, including:
- Defined security areas with restricted access (data centers, server rooms);
- Access authorizations for employees and third parties, visitor registration;
- Access control system (via magnetic cards);
- Door locking (electric door openers etc.);
- Security staff;
- Surveillance, video/CCTV monitor, alarm system.
2.Access restriction mechanisms
Measures to prevent data processing systems from being used by unauthorized persons, including:
- Multi-layered network/systems access restriction architecture;
- User identification and authentication procedures;
- Strong ID/password security policy (special characters, minimum length, change of password);
- Two-factor authentication;
- Automatic blocking (e.g. password or timeout);
- Monitoring of break-in-attempts and automatic turn-off of the user ID upon several erroneous attempts.
3.Data access control
Measures to ensure that persons entitled to use a data processing system gain access only to such Personal Data in accordance with their access rights, and that Personal Data cannot be read, copied, modified or deleted without authorization, including:
- Internal logical access control policies and procedures;
- Control authorization schemes;
- Differentiated access rights via roles and permissions;
- Logging of accesses;
- Limiting and monitoring of privileged access;
- Reports of access;
- Centralized procedures for access granting, revoking and regular review.
4.Communication and transport control
Measures to ensure that data cannot be read, copied, modified or deleted without authorization during electronic transmission, including:
- Transport encryption HTTPS/TLS;
- Session management with TTL and logout functions;
- Network segmentation and firewall protection;
- Internal separation of access to infrastructure and management of SSH access;
- Secure Socket Shell (SSH) with key based authentication;
- Traffic and service monitoring by dedicated operations team.
Measures to monitor whether data have been entered, changed or removed (deleted), and by whom, from data processing systems via logging and reporting capabilities.
The following measures to ensure that data are processed as agreed with the DATA CONTROLLER, including:
- Clear and detailed wording of the contract and DPA;
- Imposition of the obligation to adhere to the data secrecy requirements on the contractor's’ employees;
- Confidentiality agreements/clauses with employees and (sub)contractors.
Measures to ensure that Personal Data are protected against accidental destruction or loss (physical/logical), including:
- Distributed high-availability service architecture;
- Backup procedures;
- Mirroring of hard disks (e.g. RAID technology);
- Uninterruptible power supply (UPS);
- Remote storage.
Measures to ensure that the collected data can be processed separately for different purposes, including:
- Data segregation, that is handled by an authorization implementation. Access to data is split logically by customer;
- Separation of databases;
- Imposed limitations of data use;
- Segregation of functions between production and testing environments.