DATA PROTECTION ADDENDUM
Yieldmo, Inc., on behalf of itself and its Affiliates (“Yieldmo”) and the counterparty agreeing to this Data Protection Addendum (“Company”) have entered into an agreement, insertion order or other contract for the provision of the Controller Services, as amended from time to time (the “Main Agreement”). This Data Protection Addendum (‘DPA”) is intended to comply with the parties’ obligations under Data Privacy Laws with respect to the Processing of Controller Personal Data pursuant to the Main Agreement. Yieldmo and Company are Individually referred to as a “Party” or together as “Parties”. In the event of a conflict between this DPA and the Main Agreement, this DPA shall prevail.
a. “Adequate Country” means a country or territory that is recognized under EU Data Protection Law as providing adequate protection for Personal Data;
b. “Affiliate” means, with respect to a Party, an entity that owns or controls, is owned or controlled by or is or under common control or ownership with the Party, where “control” is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
c. “Business” or “Controller” shall mean an entity that determines the purposes and means of Processing of Personal Information.
d. “Data Privacy Laws” shall mean all applicable laws governing the handling of Personal Data, including without limitation (EC Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR“), and the EU e-Privacy Directive (Directive 2002/58/EC) (the “e-Privacy Directive”) (collectively, “EU Data Protection Law”); the local law of the place(s) where Processing by a Party and its Personnel takes place; the California Consumer Privacy Act of 2018 (“CCPA“); the California Privacy Rights Act (the “CPRA”), the Virginia Consumer Data Protection Act (the “VCDPA”), the Colorado Privacy Act (the “CPA”), the Connecticut Data Protection Act (the “CTDPA”), and/or the Utah Consumer Privacy Act (the “UCPA”), in each case, all of the foregoing as and when applicable and as amended, replaced or supplemented from time to time, and all subordinate legislation made under them, together with any codes of practice, regulations or other guidance issued by the governments, agencies, data protection regulators, or other authorities in the relevant countries or jurisdictions.
e. “EEA” means the European Economic Area, the United Kingdom and
f. “Controller Personal Data” means any Personal Data that is provided or made available by a Party to the other Party under the Main Agreement in connection with the providing Party’s provision or use (as applicable) of the Controller Services.
g. “Controller Services” means the services as described in the Main Agreement.
h. “Data Subject” means a natural person to whom any Controller Personal Data pertains.
i. “Process, Processing and Processed” means any operation or set of operations which is performed on Controller Personal Data or on subsets thereof, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
j. “Personal Data” or the equivalent ‘personal information’ means any information relating, directly or indirectly, to an identified or identifiable natural person or otherwise as defined in applicable Data Privacy Laws.
k. “Personal Data Breach” means unauthorized, accidental or unlawful Processing, access, loss, or disclosure of Controller Personal Data.
l. “Personnel” means all officers, directors and employees, independent contractors or service providers of a Party or its Affiliates.
m. “Service Provider” or “Processor” shall mean an entity that Processes Personal Information on behalf of a Business or Controller.
n. “Third Party” shall have the meaning assigned to it under Data Privacy Laws.
2. Role of the Parties.
Each Party is an independent Controller of the Controller Personal Data that it collects or Processes pursuant to the Main Agreement. Each Party shall be individually and separately responsible for complying with the obligations that apply to it as a Controller under Data Privacy Law. The Parties agree that they are not joint Controllers of any Controller Personal Data. Each Party will individually determine the purposes and means of its Processing of Controller Personal Data. For purposes of the CCPA, and other applicable Data Privacy Laws, each Party is considered to be a “Third Party”.
3. Obligations of the Parties.
a. Each Party shall comply with all applicable requirements of Data Privacy Laws. Each Party represents and warrants at all times that: (i) it has the necessary right and authority to enter into this DPA and to perform its obligations herein; (ii) its execution and performance under this DPA and the Main Agreement will not violate any agreement to which it is a party; (iii) it has provided all required information to Data Subjects including, where required, that Personal Data that may be passed to third parties for the purposes of the Main Agreement; and (iv) in collecting Controller Personal Data, it did not violate any applicable self-regulatory principles promulgated by the Network Advertising Initiative (“NAI”), the Digital Advertising Alliance (“DAA”) or the European Interactive Digital Advertising Alliance (“EDAA”) (such Self-Regulatory Principles, collectively, the “SRPs”). In the event that Company is the owner or operator of the mobile websites, mobile applications or other media from which it collects or makes available the Controller Personal Data, Company represents and warrants that either: (x) it is a participant in the IAB Europe Transparency & Consent Framework (“TCF”) and will adhere to TCF rules and guidelines, or (y) that it has otherwise obtained any legally required consent to the collection, use and disclosure of Controller Personal Data to allow Yieldmo to Process such Controller Personal Data in connection with the Controller Services.
c. Each Party will notify the other Party in writing of any action or instruction of the other Party under this DPA or the Main Agreement which, in its opinion, infringes applicable Data Privacy Laws.
d. Subject to this DPA, each Party, acting as a Controller, may Process the Controller Personal Data in accordance with, and for the purposes permitted in, the Main Agreement (the “Permitted Purposes”).
e. A Party that has made Controller Personal Data available to the other Party under the Main Agreement (“Disclosing Party”) will have the right to: (i) take reasonable and appropriate steps to help ensure that such other Party (“Receiving Party”) uses such Controller Personal Data in a manner consistent with the Disclosing Party’s obligations under and as required by Data Privacy Laws, and (ii) upon reasonable prior written notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of such Controller Personal Data under and as required by applicable Data Privacy Laws. Receiving Party will notify Disclosing Party if Receiving Party determines that it can no longer meet its obligations under applicable Data Privacy Laws. Receiving Party acknowledges and agrees that it is receiving Controller Personal Data only for the limited and specified purposes set forth in the Main Agreement. Receiving Party shall provide not less than the same level of privacy protection as is required by Data Privacy Laws for such Controller Personal Data.
4. Security and Confidentiality.
Each Party shall implement appropriate technical and organisational measures to protect the Controller Personal Data from unauthorised, accidental or unlawful access, loss, disclosure or destruction. In the event that a Party suffers a Personal Data Breach, it shall notify the other Party without undue delay, but in any event within seventy-two (72) hours of it confirming same, and both Parties shall cooperate in good faith to agree and take such measures as may be necessary to mitigate or remedy the effects of the Personal Data Breach. Nothing herein prohibits either Party from providing notification of the Personal Data Breach to regulatory authorities as may be required by Data Protection Laws prior to notification of the other Party so long as the notifying Party provides notification to the other Party without undue delay. Each Party shall ensure that all of its Personnel who have access to and/or Process Controller Personal Data are obliged to keep the Controller Personal Data confidential.
5. Transfers outside the EEA.
5.1 Where the Controller Services involve the storage and/or Processing of Controller Personal Data which transfers Controller Personal Data out of the European Economic Area or the UK to a jurisdiction that is not an Adequate Country, and EU Data Protection Laws apply to the transfers of such data (“Transferred Personal Data”), both parties agree that such transfers shall be governed as follows:
(a) for data subjects located in the EEA, by the unchanged version of the standard contractual clauses in Commission Decision 2021/914/EU (MODULE ONE: Transfer Controller to Controller) as can be found at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914&from=EN) (the “EU SCC”). Clause 7 (Docking Clause), but not the option under Clause 11 (independent dispute resolution), shall apply;
(b) for data subjects located in the UK, by the EU SCC plus the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as can be found at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf (or as it may be amended or replaced) (the “UK Addendum”);
(c) the EU SCC and if applicable the UK Addendum shall be incorporated into this DPA by reference and form an integral part of this DPA. For the purposes of the descriptions in the EU SCC and only as between the parties, Company agrees that it is a “data exporter” and Yieldmo is the “data importer” under the EU SCC;
(d) the Annexes to this DPA provide the information required by Annexes I, II and III of the EU SCC and by the UK Addendum as set out in Annex I.B to this DPA. The EU SCC may also be annexed to this DPA if appropriate.
5.2 The parties may store and Process Transferred Personal Data in the United States of America, the United Kingdom and/or any other country in which either party or any of its Processors maintains facilities so long as such party and any of its Processors:
(a) transfer such data via a valid legal mechanism such as the appropriate EU SCC and/or UK Addendum, or a UK International Data Transfer Agreement; and
(b) provide at least the same level of protection to such Transferred Personal Data as is required by such mechanism to ensure an adequate level of protection for such Transferred Personal Data in accordance with the requirements of European Data Protection Laws.
5.3 In the event of inconsistencies between the provisions of the EU SCC or UK Addendum and this DPA or other agreements between the parties, then the terms of the EU SCC or UK Addendum as applicable shall prevail.
5.4 If the EU SCC or UK Addendum are deemed invalid by a governmental or judicial entity with jurisdiction over Transferred Personal Data (e.g., the EU Court of Justice) or if such entity imposes additional rules and/or restrictions regarding such Transferred Personal Data, the parties agree to work in good faith to find an alternative and/or modified approach with respect to such Transferred Personal Data which is in compliance with European Data Protection Laws.
5.5 Where the European Commission or other relevant supervisory authority issues new, updated or replacement EU SCC, or the UK Addendum is updated or replaced, then Yieldmo may notify Company in writing thereof and the parties shall replace the EU SCC or UK Addendum as appropriate and make any other necessary amendments to this DPA.
6. Data Subject Requests.
Each Party will process its own requests for Data Subjects to exercise their rights. With respect to requests from, or on behalf of Data Subjects to the Processing of Personal Data that is shared between the Parties, including requests to opt-out from the Sale of Personal Information pursuant to CCPA, the parties will collaborate to honor such objections or opt-out requests.
7. Compliance Cooperation.
Both Parties agree to reasonably cooperate and assist each other in relation to any regulatory inquiry, complaint or investigation concerning the Controller Personal Data shared between the Parties.
8. Allocation of Costs.
Each Party shall perform its obligations under this DPA at its own cost, except as otherwise specified herein.
The liability of the Parties under or in connection with this Agreement will be subject to the exclusions and limitations of liability in the Main Agreement.
If any provision or condition of this DPA is held or declared invalid, unlawful or unenforceable by a competent authority or court, then the remainder of this DPA shall remain valid. The provision or condition affected shall be construed to be amended in such a way that ensures its validity, lawfulness and enforceability while preserving the parties’ intentions, or if that is not possible, as if the invalid, unlawful or unenforceable part had never been contained in this DPA. This DPA shall be governed by and construed in accordance with the laws governing the Main Agreement, and any disputes shall be resolved by the courts agreed for resolution of disputes under the Main Agreement.
A. LIST OF PARTIES
1. Data Exporter
2. Data Importer
B. DESCRIPTION OF TRANSFER / PROCESSING ACTIVITIES
Categories of data subjects whose Personal Data is transferred
(a) end users of websites, mobile websites or applications on which the Controller Services are utilized;
(b) the Parties’ employees, contractors and representatives.
Categories of Personal Data transferred
(a) pseudonymous data collected through or in relation to the Controller Services (e.g. IP addresses, cookie identifiers, mobile advertising IDs). The above may be accompanied by other information about the data subjects whose Personal Data is being transferred, such as browser type and version, time stamp, device operating system and platform and country associated with the data subject.
(b) names and contact details.
Sensitive data transferred (if applicable)
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Nature of the processing
- As set out in the Agreement.
Purpose(s) of the data transfer and further processing
- The Parties will process the Controller Personal Data as part of the Controller Services in accordance with 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
- The later of 13 months from the date of collection, or for the Term of the Agreement.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
- As above.
C. COMPETENT SUPERVISORY AUTHORITY
The Irish Data Protection Commissioner.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Each party will implement and maintain a comprehensive written information security program designed to protect Personal Data from unauthorized access, use, modification, disclosure or destruction. Without limiting the generality of the foregoing, as part of its information security program, each party will:
- provide appropriate training to its personnel who process Personal Data
- use multi-factor authentication for access to any systems storing Personal Data
- use reputable services and/or tools to continuously monitor for malicious or unauthorized behavior
- encrypt Personal Data at rest and in transit
ANNEX I.B (UK Addendum)
UK International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
VERSION B1.0, in force 21 March 2022
Part 1: Tables
Table 1: Parties
Table 2: Selected SCCs, Modules and Selected Clauses
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
Table 4: Ending this Addendum when the Approved Addendum Changes
Part 2: Mandatory Clauses
Last updated: December 14, 2022