Version: January 24, 2022
This Data Processing Agreement (hereafter the “Data Processing Agreement“) applies to Shipwire’s Processing of Personal Data as part of Shipwire’s provision of the Shipwire Services. The Shipwire Services are described in the (i) Shipwire Terms of Service and/or (ii) Master Services Agreement (collectively, the “Shipwire Terms”).
Unless otherwise expressly stated, this version of the Data Processing Agreement is incorporated into and subject to the Shipwire Terms, and shall be effective and remain in force for the term of the Shipwire Services.
Except as expressly stated otherwise in this Data Processing Agreement, in the event of any conflict between the Shipwire Terms, including any policies or schedules referenced therein, and this Data Processing Agreement, the relevant terms of this Data Processing Agreement shall take precedence.
1. DEFINITIONS AND INTERPRETATION
“Annex” means each annex to this Data Processing Agreement which forms part of the agreement.
“California Consumer Privacy Act (CCPA) means the California Consumer Privacy Act which contains provisions and requirements concerning the handling of personal data of individuals inside the state of California.
“Customer” shall have the meaning in the Shipwire Terms.
“Data Subject” means any identified or identifiable person or legal entity (if the case may be under the applicable legislation) to whom Personal Data relates; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, psychological, genetic, mental, economic, cultural and/or social identity of that person.
“Data Controller” or “Controller” means the legal person which alone or in conjunction with others, determines the purposes and means of the Processing of Personal Data, which for the purposes of this Data Processing Agreement is the Customer.
“Data Processing Agreement” or “DPA” means this agreement including the attached Annexes.
“Data Processor” or “Processor” means the entity which Processes Personal Data on behalf of the Controller, which for the purposes of this Data Processing Agreement is Shipwire.
“Data Protection Laws and Regulations” means all applicable laws, directives, ordinances, rules, regulations etc. including but not limited to European or local country laws and regulations, such as the GDPR, and to the extent applicable, the data protection or privacy laws of any country applicable to the Processing of Personal Data under this Data Processing Agreement and the Shipwire Terms.
“Data Security Breach” means any incident involving the accidental, unlawful or unauthorized destruction, loss, alteration, disclosure of or access to Personal Data, under this Data Processing Agreement.
“Data Transfer” or “Transfer” means any cross-border communication of Personal Data regardless of the format, any storage of Personal Data on data-bases hosted in different countries, any access to Personal Data hosted in a different country or the use of Personal Data by Third Parties.
“EEA” means the European Economic Area which consists of all countries of the European Union, Liechtenstein, Norway and Iceland.
“GDPR” or “General Data Protection Regulation” means the EU General Data Protection Regulation 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
“Shipwire Terms” means the main agreement for the provision of Services between Controller and Processor.
“Personal Data” means any information relating to an identified or identifiable natural person or legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), received and processed by Processor on behalf of and for Controller or its clients under this Data Processing Agreement and in course of providing the Services.
“Processing”, “Process” or “Data Processing” means any operation or any set of operations concerning Personal Data, such as the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, dissemination, disclosure by means of transmission, distribution or otherwise making available in any other form, merging, linking, as well as restriction, erasure or destruction of data.
“Services” or “Shipwire Services” means all services Processor provides as agreed to in the Shipwire Terms.
“Sub-processor” means any data processor engaged by Processor in the course of providing the Services.
“Supervisory Authority” means an independent public authority established in a particular country responsible for monitoring the compliance with the Data Protection Laws and Regulations within such country, in order to protect the fundamental rights and freedoms of natural persons in relation to processing.
“Third Party” means a natural or legal person, public authority, agency or body other than the Data Subject, Controller, or Processor.
2.1 The parties shall at all times comply with the applicable data protection legislation and privacy laws, including without limitation the EU Privacy Directive and the General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”). The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Data Controller (or Business under CCPA) and Shipwire is the Data Processor (or Service Provider under CCPA). For the purposes of this Data Processing Agreement, referring to the Data Controller or Controller shall also include a Business, and referring to Processor shall also include a Service Provider.
The subject-matter of Processing of Personal Data by the Processor is the performance of the Services pursuant to the Shipwire Terms.
Processor will only Process Personal Data for Controller in accordance with this Data Processing Agreement, the applicable Data Protection Laws and Regulations and with Controller’s written instructions in relation to the Processing of Personal Data as part of providing the Services. Processor agrees and certifies to use the Personal Data for the purposes defined by Controller and for no other purpose. Processor shall at all times treat Controller’s Personal Data under the Shipwire Terms and this Data Processing Agreement as confidential information, subject to the provisions set forth in the Shipwire Terms.
2.2 Processor and Controller will timely provide each other with all necessary information regarding the Processing of Personal Data to enable compliance with the relevant Data Protection Laws and Regulations.
3. PROCESSING OF PERSONAL DATA AND CROSS-BORDER DATA TRANSFER
3.1 Annex 1 contains an overview of categories of Data Subjects, categories of Personal Data and the purposes of Processing Personal Data, under this Data Processing Agreement. Processor shall Process and use the Personal Data for the purposes defined by the Controller as set out in Annex 1. The Parties agree that reasonable amendments to Attachment 1 might take place upon mutual written agreement by the Parties from time to time as necessary to meet legal and data protection requirements.
3.2 Processor will only Process Personal Data on behalf of and in accordance with Controller’s documented instructions in the course of providing the Services under the Shipwire Terms or to comply with legal obligations to which Processor or its affiliated companies are subject. For the avoidance of doubt, Controller will ensure that its instructions for the Processing of Personal Data shall comply with the applicable Data Protection Laws and Regulations. If however, at any time during the execution of this Data Processing Agreement and the Shipwire Terms, Processor establishes that Controller’s instructions appear in any way to be unlawful or non-compliant with the applicable legislation, Processor shall without undue delay notify this to Controller and wait for further instructions.
3.3 In the event a legal requirement prevents Processor from complying with Controller’s instructions or requires Processor to Process the Personal data for a particular purpose or to disclose the Personal Data to a Third Party, Processor shall inform Controller in writing of the relevant legal requirement before carrying out the relevant Processing activities and co-operate with Controller regarding the manner of such disclosure.
3.4 Processor shall not perform cross-border Transfers outside the EEA, disclose or otherwise permit access to the Personal Data to any Third Party for any purpose, without Controller’s prior written consent, unless the Transfer, the disclosure or the access permission are strictly necessary in order to comply with a legal obligation or for the performance of the Services and Processor’s compliance with the terms of this Data Processing Agreement and the Shipwire Terms. Notwithstanding the above, for the Processing of Personal Data outside the EEA, Processor will provide Controller with an overview of the countries in which the Personal Data is Processed or transferred to. Upon signing this Data Processing Agreement, Controller gives its consent for the processing of Personal Data by the Processor or its Sub-processors in the countries included in Annex 1.
3.5 The parties agree and certify that any disclosure, access or Data Transfer outside the EEA, of Controller’s Personal Data under this Data Processing Agreement and the Shipwire Terms, to the Processor, any Sub-processors or Third Parties, will be performed in compliance with the applicable Data Protection Laws and Regulations and the provisions set forth in this Data Processing Agreement and only upon implementing an adequate and legally valid data transfer safeguard mechanism as provided by the GDPR, such as by entering into the appropriate module of the Standard Contractual Clauses, attached hereto as Annex 3.
3.6 Controller warrants and represents that it will not unlawfully provide or transfer any Personal Data for Processing by Processor and that any Personal Data provided to Processor for Processing has been collected and obtained lawfully, using valid legal grounds and in compliance with the principles related to the processing of Personal Data as provided under the GDPR, such as where needed, the Data Subject has given its consent to the Processing of its Personal Data by Processor under the Data Protection Laws and Regulations. Controller also acknowledges and agrees that it has the sole responsibility of obtaining all necessary consents for the Processing of Personal Data under this Data Processing Agreement and thereby warrants and represents that where such consent is needed, Controller has obtained Data Subject’s consent and upon written request by the Processor, copies of such consents will be provided to Processor.
4. SECURITY OF PERSONAL DATA
4.1 Processor shall maintain all necessary and appropriate technical and organizational security measures to ensure the security, availability, confidentiality and integrity of its computers, other information systems and services, and to protect Personal Data under this Data Processing Agreement, against accidental, unauthorized or unlawful destruction, disclosure, coping, use, loss, alteration, or access or any other form of unlawful or unauthorized Processing in accordance with the applicable Data Protection Laws and Regulations. Processor shall ensure that its systems (including security software and connections) are in compliance with the applicable Data Protection Laws and Regulations, and industry standards.
4.2 Taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing and the nature of Personal Data as well as the risk and severity for the rights and freedoms of natural persons, Processor warrants that its security measures ensure a level of security appropriate to the risks presented by the Processing of Personal Data. Processor shall maintain such security measures and comply with the Data Protection Laws and Regulations for as long as it is Processing the Personal Data, and this Data Processing Agreement and the Shipwire Terms are not expired or terminated.
4.3 The technical and organizational security measures Processor has implemented are specified in Annex 2 to this Data Processing Agreement. Controller agrees that the measures included in Annex 2 are sufficient to ensure an appropriate level of security of the Personal Data.
5.1 Controller has the right, at its own costs, to audit or have an independent third-party auditor, as Controller may from time to time designate in writing, to perform an audit on its behalf in order to audit Processor’s compliance with its obligations under the Data Processing Agreement and the applicable Data Protection Laws and Regulations. Processor shall provide Controller, for the purpose of the audit and upon written request, with all information necessary to demonstrate compliance with Processor’s obligations under this Data Processing Agreement, excluding any information, documents or records relating to the business relations of Processor with any Third Party or the documents or records already audited by the Controller during the last twelve (12) months. Processor shall ensure reasonable cooperation in the performance of the audit and will grant the auditor access to its premises in which Processor is providing Services to Controller.
5.2 Controller may perform such audits no more than once every calendar year and upon providing to Processor a prior written notice of at least 30 business days. Controller shall carry out any inspection at mutually agreeable date, during normal working hours and without interfering with the course of Processor’s business.
5.3 Recommendations and/or required alterations following from the audits will be assessed and applied by Processor after having consulted Controller.
5.4 In case of an investigation by any other competent authority Processor will ensure all reasonable cooperation, inform Controller immediately and shall not disclose any Personal Data without a prior written notification to Controller. The parties shall consult with each other on how to act regarding the investigation.
6. SECURITY BREACHES AND NOTIFICATION
6.1 If the Processor becomes aware of any incident involving the accidental, unlawful or unauthorized destruction, loss, alteration, disclosure of or access to Controller’s Personal Data, the Processor shall notify the Controller without undue delay and as soon as reasonably possible about the Data Security Breach or security incident related to the Processing of Personal Data under this Data Processing Agreement and the Shipwire Terms. Processor shall investigate and provide the Controller with sufficient information related to the Data Security Breach in order to allow it to meet any legal obligation to report or inform Data Subjects or the Supervisory Authority of the Data Security Breach under the applicable Data Protection Laws and Regulations.
6.2 In case of a security incident Processor will promptly take adequate measures to mitigate the consequences of the incident and to prevent future incidents. Processor will ensure reasonable cooperation in order to enable the Controller to comply with its legal obligation to notify of Data Security Breaches and to inform Data Subjects and the Supervisory Authority within the time frame provided in the applicable Data Protection Laws and Regulations.
7. DATA SUBJECTS REQUESTS
7.1 Processor shall promptly notify Controller if it receives a request from a Data Subject to exercise its rights of access to, rectification, amendment, restriction of Processing or deletion (“right to be forgotten”), data portability, objection to the Processing of that person’s Personal Data or any other Data Subject request, under any of the applicable Data Protection Laws and Regulations. Processor will not respond to any such Data Subject request without Controller’s prior written consent and in accordance with Controller’s instructions, except to confirm that the request relates to Controller.
7.2 Processor shall provide Controller with all reasonable cooperation and assistance in order to enable Controller to comply with its legal obligations in relation to the handling of Data Subject requests, within the statutory time limits, to the extent that the Processor is legally permitted to do so and provided that such Data Subject Requests are exercised in accordance with the applicable Data Protection Laws and Regulations.
8.1 Processor shall not subcontract any of its Processing operations regarding Controller’s Personal Data without the express prior written consent of Controller which consent shall not be withheld in case of a reasonable request. The Parties will include the relevant data of any Sub-processors in Annex 1, and Controller agrees to these Sub-processors by agreeing to the Shipwire Terms.
8.2 Processor shall only subcontract its Processing operations regarding the Personal Data by way of a written agreement signed between the Processor and the Sub-processor which is in accordance with the obligations and restrictions imposed on the Processor by the applicable Data Protection Laws and Regulations and the principles set forth in this Data Processing Agreement.
9. ACCESS TO PERSONAL DATA
9.1 The Personal Data belongs exclusively to Controller. Subject to the remuneration by Controller of the reasonable costs involved, Processor warrants full and continuous access to the Personal Data, also in case of any conflict between the parties for whatever reason.
9.2 Processor shall ensure that its personnel engaged in the Processing of Personal Data under this Data Processing Agreement and the Shipwire Terms, have received appropriate training on their responsibilities, necessary to comply with the terms of this Data Processing Agreement. Processor shall ensure that the access to Personal Data is limited to those personnel who requires such access to perform the Services under this Data Processing Agreement and the Shipwire Terms. Processor certifies to have appointed a data protection officer where such appointment is required by the applicable Data Protection Laws and Regulations.
10. RETURN AND DELETION OF CUSTOMER DATA
10.1 Processor will retain the Personal Data for a duration as instructed by the Controller, and consistent with the retention periods in Annex 1. Processor warrants to return or, to the extent allowed by the applicable laws and in accordance with Controller’s instructions and the terms of this Data Processing Agreement, delete and destroy all Personal Data and any copies of such data after the retention period has lapsed.
10.2 Upon Controller’s request, expiration or earlier termination of this Data Processing Agreement, Processor shall promptly and in any event within thirty (30) days of the date of cessation of any Services involving the Processing of Controller’s Personal Data, return to Controller or delete and procure a certification of destruction of all copies of Controller’s Personal Data that might be in their possession. The return of Controller’s Personal data and all its copies in Processor’s possession shall be completed by secure file transfer in such format as is reasonably requested by Controller to Processor. The parties agree that the Controller will bear all reasonable costs involved in the return or the deletion of the Personal Data.
10.3 The Processor may retain Controller’s Personal Data to the extent required by the applicable laws and for such period as required by the applicable laws. Notwithstanding the above, when retaining Controller’s Personal Data Processor shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is Processed only as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.
11. INDEMNIFICATION AND LIABILITY
11.1 In the event any of the parties breaches and fails to comply with the terms and conditions in this Data Processing Agreement, the breaching Party shall be held liable for all damages and costs incurred by the other Party, in accordance with the provisions on liability and damages laid down in the Shipwire Terms.
11.2 Controller shall indemnify and hold Processor harmless from any liability, losses, claims, penalties, damages, costs and expenses of whatever nature, imposed by the Supervisory Authority on Processor and arising out of any claims, actions, proceedings or settlements, resulting from the breach or non-compliance of Controller with the terms and conditions of this Data Processing Agreement and/or with the applicable Data Protection Laws and Regulations.
(i) promptly notify Controller of any claim, investigation or other circumstances that come to its attention and that may lead to such liability, losses, claims, penalties, damages, costs and expenses to be imposed by the authorities
(ii) act and communicate with the authority and cooperate as may be reasonably required by the Controller at Controller’s cost in settling the claim.
The Data Processing Agreement will be effective as of the date of the execution of the Shipwire Terms and shall remain in force during the term of the Shipwire Terms. This Data Processing Agreement will terminate automatically with the termination or expiry of the Shipwire Terms.
13.1 In the event of changes in the Services or applicable Data Protection Laws and Regulations which will affect the Processing of the Personal Data and requires the amendment of the Data Processing Agreement in order for the parties to be able to address the requirements and comply with the applicable laws, the parties will consult with each other in good faith in order to amend the Data Processing Agreement. Any amendments to this Data Processing Agreement can solely be made in writing by duly authorized representatives of the parties.
13.2 If any provision of this Data Processing Agreement is found by any court or administrative body of competent jurisdiction to be void, invalid, illegal or otherwise unenforceable, all other terms and provisions of this Data Processing Agreement shall nevertheless remain in full force and effect, and the invalidity or unenforceability of such provision will not adversely affect the enforceability of any other provision of this Data Processing Agreement.
13.3 Any conflict between the provisions of this Data Processing Agreement and the Standard Contractual Clauses set forth in Annex 3, shall be resolved in favor of the Standard Contractual Clauses.
14. APPLICABLE LAW AND JURISDICTION
14.1 This Data Processing Agreement shall exclusively be governed by and construed in accordance with the laws of California.
14.2 Any dispute, controversy or claim arising out of or in connection with this Data Processing Agreement or the breach, termination or invalidity thereof shall be settled and submitted to the competent courts of California.
A. Categories of Data Subjects
Processor will process Personal Data regarding the following categories of Data Subjects:
End customers of the Customer
B. Categories of Personal Data
Personal Data processed by Processor will include:
End customer name, address, email address, phone number, and order information.
C. Purposes of Processing Personal Data
The Personal Data will in any event be processed for the following purposes:
To provide fulfilment services of goods ordered by the end customer
D. Cross-Border Data Transfer and Data Processing
The Personal Data will be processed and transferred to the following countries outside the EEA:
Processor has contracted the following Sub-processors:
- Google Cloud Platform
- Endicia (address validation)
- Global-Z (address validation)
- MaxMind (fraud prevention)
- Microsoft Dynamics (CRM)
- Mailjet (email service)
- Mailchimp (email service)
- Mandrill (email service) – part of Mailchimp
- Google (geocoding)
- Paypal (payment processing)
- Shipsurance (insurance) – part of assurant.com
- Convey (shipment tracking)
- FiveTran (data replication provider)
- DropStream (integration platform)
- MongoDB Cloud (database)
- MagicLogic (Carton optimization)
- LogicBroker (EDI)
- Warehouse Partners
- NGL (ImpactFS – IFS)
- The Jay Group
- AFM UK
- Project Verte
- Ingram Micro Warehouses
- Royal Mail
- Passport Shipping
- Hong Kong Post
- Canada Post
F. Retention Period
During the term of the Shipwire Terms and as required by law
G. Contact details
The contact person regarding this Data Processing Agreement is:
Name: Aaron Mendelsohn Shipwire Data Protection Officer
E-mail address: Aaron.Mendelsohn@ingrammicro.com
Description of the organizational and technical security measures of the Processor in order to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and all other forms of unlawful Processing in accordance with applicable Data Protection Laws and Regulations.
I. Organization of Information Security.
1) Security Ownership.
Data Processor has appointed one or more security officers responsible for coordinating and monitoring the security rules and procedures.
2) Security Roles and Responsibilities.
Data Processor personnel with access to Personal Data are subject to confidentiality obligations.
3) Risk Management Program.
Data Processor performed a risk assessment before processing the Personal Data.
4) Data Processor retains its security documents pursuant to its retention requirements after they are no longer in effect.
II. Asset Management.
1) Asset Inventory.
Data Processor maintains an inventory of all media on which Personal Data is stored. Access to the inventories of such media is restricted to Data Processor personnel authorized in writing to have such access.
2) Asset Handling.
A. Data Processor classifies Personal Data to help identify it and to allow for access to it to be appropriately restricted (e.g., through encryption).
B. Data Processor imposes restrictions on printing Personal Data and has procedures for disposing of printed materials that contain Personal Data.
C. Data Processor personnel must obtain Data Processor authorization prior to storing Personal Data on portable devices, remotely accessing Personal Data, or processing Personal Data outside Data Processor facilities. This includes removing media (e.g., USB sticks and CD ROMs) and documents containing Personal Data from Data Processor’s facilities.
III. Human Resources Security.
1) Security Training.
A. Data Processor informs its personnel about relevant security procedures and their respective roles. Data Processor also informs its personnel of possible consequences of breaching the security rules and procedures.
B. Data Processor will only use anonymous data in training.
IV. Physical and Environmental Security.
1) Physical Access to Facilities.
Data Processor limits access to facilities where information systems that process Personal Data are located to identified authorized individuals.
2) Physical Access to Components.
Data Processor maintains records of the incoming and outgoing media containing Personal Data, including the kind of media, the authorized sender/recipients, date and time, the number of media and the types of Personal Data they contain.
3) Protection from Disruptions.
Data Processor uses a variety of industry standard systems to protect against loss of data due to power supply failure or line interference.
4) Component Disposal.
Data Processor uses industry standard processes to delete Personal Data when it is no longer needed.
V. Communications and Operations Management.
1) Operational Policy.
Data Processor maintains security documents describing its security measures and the relevant procedures and responsibilities of its personnel who have access to Personal Data.
2) Data Recovery Procedures.
A. On an ongoing basis, Data Processor maintains multiple copies of Personal Data from which Personal Data can be recovered.
B. Data Processor stores copies of Personal Data and data recovery procedures in a different place from where the primary computer equipment processing the Personal Data is located.
C. Data Processor has specific procedures in place governing access to copies of Personal Data.
D. Data Processor reviews data recovery procedures at least every six months.
E. Data Processor logs data restoration efforts, including the person responsible, the description of the restored data and which data (if any) had to be input manually in the data recovery process.
3) Malicious Software.
Data Processor has anti-malware controls to help avoid malicious software gaining unauthorized access to Personal Data, including malicious software originating from public networks.
4) Data Beyond Boundaries.
A. Data Processor encrypts Personal Data that is transmitted over public networks.
B. Data Processor restricts access to Personal Data in media leaving its facilities (e.g., through encryption).
5) Event Logging
A. Data Processor logs the use of data-processing systems.
B. Data Processor logs access and use of information systems containing Personal Data, registering the access ID, time, authorization granted or denied, and relevant activity.
VI. Access Control.
1) Access Policy.
Data Processor maintains a record of security privileges of individuals having access to Personal Data.
2) Access Authorization.
A. Data Processor maintains and updates a record of personnel authorized to access Data Processor systems that contain Personal Data.
B. Data Processor deactivates authentication credentials that have not been used for a period of time not to exceed six months.
C. Data Processor identifies those personnel who may grant, alter or cancel authorized access to data and resources.
D. Data Processor ensures that where more than one individual has access to systems containing Personal Data, the individuals have separate identifiers/log-ins.
3) Least Privilege.
A. Technical support personnel are only permitted to have access to Personal Data when needed.
B. Data Processor restricts access to Personal Data to only those individuals who require such access to perform their job function.
4) Integrity and Confidentiality.
A. Data Processor instructs Data Processor personnel to disable administrative sessions when leaving premises Data Processor controls or when computers are otherwise left unattended.
B. Data Processor stores passwords in a way that makes them unintelligible while they are in force.
A. Data Processor uses industry standard practices to identify and authenticate users who attempt to access information systems.
B. Where authentication mechanisms are based on passwords, Data Processor requires that the passwords are renewed regularly.
C. Where authentication mechanisms are based on passwords, Data Processor requires the password to be at least eight characters long.
D. Data Processor ensures that de-activated or expired identifiers are not granted to other individuals.
E. Data Processor monitors repeated attempts to gain access to the information system using an invalid password.
F. Data Processor maintains industry standard procedures to deactivate passwords that have been corrupted or inadvertently disclosed.
G. Data Processor uses industry standard password protection practices, including practices designed to maintain the confidentiality and integrity of passwords when they are assigned and distributed, and during storage.
6) Network Design.
A. Data Processor has controls to avoid individuals assuming access rights they have not been assigned to gain access to Personal Data they are not authorized to access.
VII. Information Security Incident Management.
1) Incident Response Process.
A. Data Processor maintains a record of security breaches with a description of the breach, the time period, the consequences of the breach, the name of the reporter, and to whom the breach was reported, and the procedure for recovering data.
B. Data Processor tracks disclosures of Personal Data, including what data has been disclosed, to whom, and at what time.
2) Service Monitoring.
Data Processor security personnel verify logs at least every six months to propose remediation efforts if necessary.
VIII. Business Continuity Management.
1) Data Processor maintains emergency and contingency plans for the facilities in which Data Processor information systems that process Personal Data are located.
2) Data Processor’s redundant storage and its procedures for recovering data are designed to attempt to reconstruct Personal Data in its original state from before the time it was lost or destroyed.
I. STANDARD CONTRACTUAL CLAUSES
Pursuant to the COMMISSION IMPLEMENTING DECISION (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council
Name of the data exporting organization: Customer
(the data exporter)
Name of the data importing organization: Shipwire, Inc.
(the data importer)
each a “Party”; together “the Parties”,
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.
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.
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.
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.
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.
7) Docking Clause
II. OBLIGATIONS OF THE PARTIES
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 organizational 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 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 organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized 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 pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, 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 organizational 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 authorized 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 (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 defense 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.
9) Use of sub-processors
A. The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorization. The data importer shall submit the request for specific authorization at least [ ] days prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorization. The list of sub-processors already authorized by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.
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.
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 authorized 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 organizational 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.
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 authorized 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, organization 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.
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.
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 behavior 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.
III. LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
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 authorizing 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 authorizing 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 organizational 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 organizational 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.
15) 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 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.
IV. FINAL PROVISIONS
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.
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 the Netherlands.
18) 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 Netherlands.
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: Data Processing
See Data Processing Agreement, Annex 1
See Data Processing Agreement, Annex 2
LIST OF SUB-PROCESSORS
The controller has authorized the use of the following sub-processors:
See Data Processing Agreement, Annex 1