Data Processing AddendumLast Updated: December 16, 2021
This Data Processing Addendum (“DPA”) forms an integral part of the Agreement (“Main Agreement”) between Snappy App Inc. ("Company") and between the counterparty agreeing to these terms ("Customer"; each “Party” and together “Parties”) and applies to the extent that Company processes Personal Data on behalf of the Customer, in the course of its performance of its obligations under the Main Agreement.
You accept this DPA by agreeing to the Main Agreement or by sending any Gifts or utilizing the Services. If you are accepting this DPA on behalf of Customer, you warrant that: (a) you have full legal authority to bind Customer to this DPA; (b) you have read and understand this DPA; and (c) you agree, on behalf of Customer, to this DPA. If you do not have the legal authority to bind Customer, please do not accept this DPA.
All capitalized terms not defined herein shall have the meaning set forth in the Main Agreement.
- "Approved Jurisdiction" means a member state of the European Economic Area, or other jurisdiction as may be approved as having adequate legal protections for data by the European Commission currently found here: https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/adequacy-decisions_en.
- “Data Protection Laws” means, any and all applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state, federal or national level, pertaining to data privacy, data security or the protection of Personal Data, including the Privacy and Electronic Communications Directive 2002/58/EC (and respective local implementing laws) concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the 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 (“GDPR”), Data Protection Act 2018 and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th 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) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 ("UK GDPR"), the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. ("CCPA"), a nd any amendments or replacements to the foregoing.
- “Data Subject” means an individual to whom Personal Data relates. Where applicable, a Data Subject shall be deemed a "Consumer" as this term is defined under the CCPA.
- "EEA" means those countries that are member of the European Economic Area.
- “Permitted Purposes” mean any purposes in connection with Company performing its obligations under the Main Agreement.
- "Personal Data" means any information relating to an identified or identifiable natural person but excluding any personal data which may be provided to Company directly by any person, including a Customer employee.
- "Security Incident" shall mean any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed. For the avoidance of doubt, any Personal Data Breach (as defined under the GDPR) will comprise a Security Incident.
- “Security Measures” mean commercially reasonable security-related policies, standards, and practices commensurate with the size and complexity of Company’s business, the level of sensitivity of the data collected, handled and stored, and the nature of Company’s business activities.
- "Standard Contractual Clauses" mean Module 2 or 3, as applicable, of the 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 from June 4th 2021.
- “Sub-Processor(s)” mean any Affiliate, agent or assignee of Company that may process Personal Data pursuant to the terms of the Main Agreement, and any unaffiliated processor, vendors or service provider engaged by Company.
- The terms "Business", “Controller”, "Personal Data", “Processor”, “Process”, “Processing” and "Service Provider" shall have the meanings ascribed to them in the Data Protection Law, as applicable.
2. Application of this DPA
- This DPA will only apply to the extent all of the following conditions are met:
A) Company processes Personal Data that is provided by the Customer to Company in connection with the Main Agreement (whether directly by the Customer or indirectly by a third party retained by and operating for the benefit of the Customer);
B) Data Protection Laws apply to the processing of Personal Data.
- This DPA will only apply to the services for which the Parties agreed to in the Main Agreement ("Services"), which incorporates the DPA by reference.
3. Parties' Roles
- In respect of the Parties' rights and obligations under this DPA regarding the Personal Data, the Parties hereby acknowledge and agree that the Customer is the Controller or Processor (as well as, as applicable, the Business or Service Provider, as these terms are defined under the CCPA) and Company is a Processor or Sub-Processor (as well as, as applicable, the Service Provider, as this term is defined under the CCPA), and accordingly:
A) Company agrees that it shall process all Personal Data in accordance with its obligations pursuant to this DPA;
B) The Parties acknowledge that the Customer discloses Personal Data to Company only for the performance of the Services and that this constitutes a valid business purpose for the processing of such data.
- If Customer is a Processor, Customer warrants to Company that Customer’s instructions and actions with respect to the Personal Data, including its appointment of Company as another Processor and concluding the Standard Contractual Clauses, have been authorized by the relevant Controller.
- Notwithstanding anything to the contrary in the DPA, Customer acknowledges that Company shall have the right to collect, use and disclose data:
A) collected in the context of providing the Services to Customer including but not limited to for the purposes of billing, record-keeping and other legitimate business purposes, such as account management, customer support, protection against fraudulent or illegal activity and the prevention of misuse of the Services, and for the purpose of establishment, exercise and defense of legal claims.
B) collected in the context of using the Services, for the purpose of analytics, market research, product improvement and development, provided however that the foregoing shall be based solely on the processing of aggregated or anonymized information.
- To the extent that any data referred under section 3.3 is considered Personal Data, then Company shall be regarded as an independent Controller of such data under applicable Data Protection Laws and its processing by Company shall be outside the scope of this DPA.
4. Compliance with Laws
- Each Party shall comply with its respective obligations under the Data Protection Law.
- Company shall provide reasonable cooperation and assistance to Customer in relation to Company’s processing of Personal Data in order to allow Customer to comply with its obligations as a Data Controller under the Data Protection Law.
- Company agrees to notify Customer promptly if it becomes unable to comply with the terms of this DPA and take reasonable and appropriate measures to remedy such non-compliance.
- Throughout the duration of the DPA, Customer agrees and warrants that:
A) Personal Data has been and will continue to be collected, processed and transferred by Customer in accordance with the relevant provisions of the Data Protection Law;
B) Customer is solely responsible for determining the lawfulness of the data processing instructions it provides to Company and shall provide Company only instructions that are lawful under Data Protection Law;
C) the processing of Personal Data by Company for the Permitted Purposes, as well as any instructions to Company in connection with the processing of the Personal Data (“Processing Instructions”), has been and will continue to be carried out in accordance with the relevant provisions of the Data Protection Law; and that
D) The Customer has informed Data Subjects of the processing and transfer of Personal Data pursuant to the DPA and obtained the relevant consents or lawful grounds thereto (including without limitation any consent required in order to comply with the Processing Instructions and the Permitted Purposes).
5. Processing Purpose and Instructions
- The subject matter of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects, shall be as set out in the Agreement, or in the attached Annex 1, which is incorporated herein by reference.
- Company shall process Personal Data only for the Permitted Purposes and in accordance with Customer’s written Processing Instructions (unless waived in a written requirement), the Agreement and the Data Protection Law, unless Company is otherwise required to do so by law to which it is subject (and in such a case, Company shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest).
- To the extent that any Processing Instructions may result in the Processing of any Personal Data outside the scope of the Agreement or the Permitted Purposes, then such Processing will require prior written agreement between Company and Customer, which may include any additional fees that may be payable by Customer to Company for carrying out such Processing Instructions. Company shall immediately inform Customer if, in Company’s opinion, an instruction is in violation of Data Protection Law.
- Additional instructions of the Customer outside the scope of the Agreement require prior and separate agreement between Customer and Company, including agreement on additional fees (if any) payable to Company for executing such instructions.
- Company shall not sell, retain, use or disclose the Personal Data for any purpose other than for the specific purpose of performing the Services or outside of the direct business relationship between the Parties, including for a commercial purpose other than providing the Services, except as required under applicable laws, or as otherwise permitted under the CCPA (if applicable) or as may otherwise be permitted for service providers or under a comparable exemption from “sale” in the CCPA (as applicable), as reasonably determined by Company. Company's performance of the Services may include disclosing Personal Data to Sub-Processors where this is relevant in accordance with this DPA. The Company certifies that it, and any person receiving access to Personal Data on its behalf, understand the restrictions contained herein
6. Reasonable Security and Safeguards
- Company represents, warrants, and agrees to use Security Measures (i) to protect the availability, confidentiality, and integrity of any Personal Data collected, accessed or processed by Company in connection with this Agreement, and (ii) to protect such data from Security Incidents. Such Security Measures include, without limitation, the security measures set out in Annex 2.
- The Security Measures are subject to technical progress and development and Company may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the services procured by Customer.
- Company shall take reasonable steps to ensure the reliability of its staff and any other person acting under its supervision who has access to and processes Personal Data. Company shall ensure that persons authorized to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- Company is responsible for performing its obligations under the Agreement in a manner which enables Company to comply with Data Protection Law, including implementing appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing of Personal Data, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data.
7. Security Incidents
- Upon becoming aware of a Security Incident, Company will notify Customer without undue delay and will provide information relating to the Security Incident as reasonably requested by Customer. Company will use reasonable endeavors to assist Customer in mitigating, where possible, the adverse effects of any Security Incident.
8. Security Assessments and Audits
- Company audits its compliance with data protection and information security standards on a regular basis. Such audits are conducted by Company’s internal audit team or by third party auditors engaged by Company, and will result in the generation of an audit report (“Report”), which will be Company’s confidential information.
- Company shall, upon thirty (30) days’ prior written notice and subject to obligations of confidentiality, no more than once a year and in normal business hours, and in a manner which does not unreasonably interfere with Company’s business, allow its data processing procedures and documentation to be inspected by Customer (or a mutually agreed upon designee), at Customer's expense, in order to ascertain compliance with this DPA; Company shall cooperate in good faith with such audit requests by providing access to relevant knowledgeable personnel and documentation.
- At Customer’s written request, and subject to obligations of confidentiality, Company may satisfy the requirements set out in this section by providing Customer with a copy of the Report so that Customer can reasonably verify Company’s compliance with its obligations under this DPA.
9. Cooperation and Assistance
- If Company receives any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement, including requests from individuals seeking to exercise their rights under applicable Data Protection Law, Company will promptly redirect the request to Customer. Company will not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Company is required to respond to such a request, Company will promptly notify Customer and provide Customer with a copy of the request, unless legally prohibited from doing so. The Customer is responsible for verifying that the requestor is the data subject whose information is being sought. Company bears no responsibility for information provided in good faith to Customer in reliance on this subsection.
- If Company receives a legally binding request for the disclosure of Personal Data which is subject to this DPA, Company shall (to the extent legally permitted) notify Customer upon receipt of such order, demand, or request. It is hereby clarified however that if no such response is received from Customer within three (3) business days (or otherwise any shorter period as dictated by the relevant law or authority), Company shall be entitled to provide such information.
- Notwithstanding the foregoing, Company will cooperate with Customer with respect to any action taken by it pursuant to such order, demand or request, including ensuring that confidential treatment will be accorded to such disclosed Personal Data. Customer shall cover all costs incurred by Company in connection with its provision of such assistance.
- Upon reasonable notice, Company shall:
A) taking into account the nature of the processing, provide reasonable assistance to the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Customer’s obligation to respond to requests for exercising Data Subject's rights, at Customer’s expense;
B) provide reasonable assistance to the Customer in ensuring Customer’s compliance with its obligation to carry out data protection impact assessments or prior consultations with data protection authorities with respect to the processing of Personal Data, provided, however, that if such assistance entails material costs or expenses to Company, the Parties shall first come to agreement on Customer reimbursing Company for such costs and expenses.
10. Use of Sub-Processors
- Customer provides a general authorization to Company to appoint (and permit each Sub-Processor appointed in accordance with this Clause to appoint) Processors and/or Sub Processors in accordance with this Clause.
- Company may continue to use those Sub-Processors already engaged by Company as at the date of this Agreement, subject to Company, in each case as soon as practicable, meeting the obligations set out in this Clause.
- Company shall give Customer written notice of the proposed appointment of any new Sub-Processor, including full details of the Processing to be undertaken by the Sub-Processor, by updating Company’s list of Sub-Processors on https://www.snappy.com/privacy/sub-processors. Company can at any time appoint a new Sub-Processor by updating such website if Customer does not legitimately object to such changes within thirty (30) days after such update. Legitimate objections must contain reasonable and documented grounds relating to a Sub-Processor's non-compliance with Data Protection Laws. If, in Company’s reasonable opinion, such objections are legitimate, Company shall either refrain from using such Sub-Processor in the context of the processing of Personal Data or shall notify Customer of its intention to continue to use the Sub-Processor. Where Company notifies Customer of its intention to continue to use the Sub-Processor in these circumstances, Customer may, by providing written notice to Company, terminate the affected portion of the Main Agreement.
- With respect to each Sub-Processor, Company shall ensure that the arrangement between Company and the Sub-Processor is governed by a written contract including terms which offer at least the same level of protection as those set out in this DPA and meets the requirements of article 28(3) of the GDPR and/or of the CCPA (as applicable);
- Company will be responsible for any acts, errors or omissions by its Sub-Processors, which may cause Company to breach any of its obligations under this DPA.
- Company will only disclose Personal Data to Sub-Processors for the specific purposes of carrying out the Services on Company's behalf. Company does not sell or disclose Personal Data to third parties for commercial purposes, except as required under applicable laws.
11. Transfer of EEA resident Personal Data outside the EEA
- To the extent that Company processes Personal Data outside the EEA, then the Parties shall be deemed to enter into the Standard Contractual Clauses, subject to any amendments contained in Exhibit A, in which event the Customer shall be deemed as the Data Exporter and the Company shall be deemed as the Data Importer (as these terms are defined therein).
- Company may transfer Personal Data of residents of the EEA outside the EEA ("Transfer"), only subject to the following:
A) the Transfer is necessary for the purpose of Company carrying out its obligations under the Agreement, or is required under applicable laws; and
B) the Transfer is done: (i) to an Approved Jurisdiction, or (ii) subject to appropriate safeguards (for example, through the use of the Standard Contractual Clauses, or other applicable frameworks), or (iii) in accordance with any of the exceptions listed in the Data Protection Law (in which event Customer will inform Company which exception applies to each Transfer and will assume complete and sole liability to ensure that the exception applies).
12. Data Retention and Destruction
- Company will only retain Personal Data for the duration of the Agreement or as required to perform its obligations under the Agreement, or has otherwise required to do so under applicable laws or regulations. Following expiration or termination of the Agreement, Company will delete or return to Customer all Personal Data in its possession as provided in the Agreement, except to the extent Company is required under applicable laws to retain the Personal Data. The terms of this DPA will continue to apply to such Personal Data. This section shall not apply to the activities that are the subject matter of section 3.1 herein.
- Notwithstanding the foregoing, Company shall be entitled to maintain Personal Data following the termination of this Agreement for statistical and/or financial purposes provided always that Company maintains such Personal Data on an aggregated basis or otherwise after having removed all personally identifiable attributes from such Personal data.
- Notwithstanding the foregoing, Company shall be entitled to retain Personal Data solely for the establishment or exercise of legal claims, and/or in aggregated and anonymized form, for whatever purpose.
- Any claims brought under this DPA will be subject to the terms and conditions of the Main Agreement, including any exclusions and limitations set forth therein.
- In the event of a conflict between the Main Agreement (or any document referred to therein) and this DPA, the provisions of this DPA shall prevail.
- Company may change this DPA if the change is required to comply with Data Protection Laws, a court order or guidance issued by a governmental regulator or agency, provided that such change does not: (i) seek to alter the categorization of the Parties; (ii) expand the scope of, or remove any restrictions on, either Party’s rights to use or otherwise process Personal Data; or (iii) have a material adverse impact on Customer, as reasonably determined by Company. Company will use commercially reasonable efforts to inform Customer at least 30 days (or such shorter period as may be required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency) before the change will take effect.
Exhibit A - SCC
- If Customer is a Controller – the Parties shall be deemed to enter into the Controller to Processor Standard Contractual Clauses (Module Two); if Customer is a Processor – the Parties shall be deemed to enter into the Processor to Processor Standard Contractual Clauses (Module Three).
- This Exhibit A sets out the Parties' agreed interpretation of their respective obligations under Module Two or Module Three of the Standard Contractual Clauses (as applicable).
- The Parties further agree that for the purpose of transfer of Personal Data between the Customer (Data Exporter) and the Company (Data Importer), the following shall apply:
3.1 Clause 7 of the Standard Contractual Clauses shall not be applicable.
3.2 In Clause 9, option 2 shall apply.
3.3 In Clause 11, data subjects shall not be able to lodge a complaint with an independent dispute resolution body.
3.4 In Clause 17, option 1 shall apply. The Parties agree that the clauses shall be governed by the law of the Republic of Ireland shall govern the clauses.
3.5 In Clause 18(b) the Parties choose the courts of the state mentioned in section 3.4 above as their choice of forum.
The Parties shall complete Annexes I–II , which are incorporated in the Standard Contractual Clauses by reference.