Data Processing Agreement for Shipwire Services
Version: July 20, 2018
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.
“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 ag>reement 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.
“EU-US Privacy Shield Certification” means certification under the Privacy Shield framework administered by the US Department of Commerce.
“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”). The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Data Controller and Shipwire is the Data Processor.
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.
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. Controller acknowledges that Processor is certified under the EU-US Privacy Shield Certification and agrees to rely on the certification to provide adequate protection for any EEA Personal Data transferred to or accessed by Processor from the US. Processor warrants that it is and shall maintain its EU-US Privacy Shield Certification.
3.6 Controller shall not provide or Transfer any Personal Data for Processing by Processor unless, 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 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 prior to transferring the Personal Data 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.