Data Processing Agreement

1. Scope and Subject Matter of the Agreement

This Data Processing (“DPA”) reflects the parties’ agreement on personal data processing with respect to your agreement with the Company. This DPA is an amendment to the existing agreements between you and the Company and is effective upon your acceptance of this DPA. In case of discrepancies between your agreement with the Company and this DPA, the latter shall prevail.

Depending on the roles of the Company and you in respect of data processing on each case you may be subject to the terms either related to Processor or Joint Controller.

This DPA also incorporates Model Clauses for the transfer of personal data to third countries which do not ensure an adequate level of protection in order to provide appropriate safeguards.

2. Definitions

In this DPA:

  1. «Services» means the services provided by each Party to the other Party;
  2. «Personal data» means any information relating to an identified or identifiable natural person (‘data subject’) in EU and EEA;
  3. «Controller» means the Party which, alone or jointly with others, determines the purposes and means of the processing of personal data;
  4. «Processor» means the Party which processes personal data on behalf of the Controller.
  5. «the Company» or «we» means Airpush, Inc. or Tapcore B.V. respectively;
  6. «You» means the other Party of this DPA;
  7. «Process/processing» means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
  8. «Sub-processor» or «Sub-contractor» means a third party subcontractor engaged by the Processor which, as part of the subcontractor’s role of delivering the Services, Processes Personal Data;
  9. «Technical and organisational security measures» means those measures aimed to ensure a level of security appropriate to the risk including inter alias the pseudonymisation and encryption of personal data, the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident, a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
  10. “Data Protection Laws” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their Member states, applicable to the Processing of Personal Data under the DPA.

3. Application of Agreement

This DPA shall apply to all Personal Data related to the Services:

  1. sent from the date of this DPA by one Party to another Party for Processing;
  2. all Data accessed by one Party on behalf of the other Party for Processing from the date of this DPA; and
  3. otherwise received by a Party for Processing on the other Party’s behalf.

Categories of Data Subjects: Data Subjects include individuals interacting with the ads demonstrated by the Parties acting as publishers.

This DPA shall not apply to data of children below 16; personal data revealing racial or ethnic origin, criminal offences, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation. The Parties shall not knowingly process such data and will take all reasonable measures to avoid processing of such data.

4. Audit Rights

Each Party may audit the other Party’s compliance with the terms of the DPA up to once per year. A Party may perform more frequent audits of the computer systems that Process Personal Data to the extent required by applicable laws. If a third party is to conduct the audit, the third party must be mutually agreed to by both Parties and must execute a written confidentiality agreement acceptable to both Parties before conducting the audit.

To request an audit, the respective Party must submit a detailed audit plan at least 4 weeks in advance of the proposed audit date describing the proposed scope, duration, and start date of the audit. The opposing Party will review the audit plan and provide the other Party with any concerns or questions (for example, any request for information that could compromise security, privacy, or employment policies).

The audit reports are confidential information of the Parties. Any audits are at the expense of the Party requesting audit.

5. Incident Management and Breach Notification

Each Party evaluates and responds to incidents that create suspicion of unauthorized access to or handling of Personal Data.

The Party informed of such incidents and, depending on the nature of the activity, defines escalation paths and response teams to address those incidents. The Parties will mutually work, with the appropriate technical teams to respond to the incident. The goal of the incident response will be to restore the confidentiality, integrity, and availability of the Services environment, and to establish root causes and remediation steps. Each Party’s operations staff is instructed on responding to incidents where handling of personal data may have been unauthorized.

The respective Party shall notify the other Party without undue delay after becoming aware of a personal data breach and shall promptly investigate any security breach and take reasonable measures to identify its root cause(s) and prevent a recurrence. As information is collected or otherwise becomes available, unless prohibited by law, the respective Party will provide the other Party with a description of the security breach, the type of data that was the subject of the breach, and other information reasonably required. The Parties agree to coordinate in good faith on developing the content of any related public statements or any required notices for the affected persons.

6. Legally Required Disclosures

Except as otherwise required or permitted by law, disclosing Party will promptly notify the other Party of any subpoena, judicial, administrative or arbitral order of an executive or administrative agency or other governmental authority (“demand”) that it receives and which relates to the Personal Data the disclosing Party is Processing on the other Party’s behalf. The other Party will provide reasonable information in its possession that may be responsive to the demand and any assistance reasonably required for the disclosing Party to respond to the demand in a timely manner.

7. Modification and Termination

The Parties agree that on the termination of the provision of the Services or this DPA, each Party will make available for retrieval or otherwise will return other Party’s Personal Data, unless legislation imposed upon the Parties prevents it from returning or destroying all or part of the Personal Data transferred. In that case, the Parties warrant that they will guarantee the confidentiality of the Personal Data and will not actively process the Personal Data.

Any Party may terminate this DPA for convenience with 5 days prior notice to the other Party. The Company is entitled to modify this DPA unilaterally provided that prior notice on the respective modifications will be sent to the other Party.

8. Technical and Organizational Measures

Each Party shall ensure that it implements and maintains compliance with appropriate technical and organizational security measures for the Processing of the respective Data. Accordingly, each Party will implement the following measures:

  1. Prevention of unauthorized persons from gaining access to data processing systems in which Personal Data are Processed.
  2. Authentication via passwords and logging of access on several levels.
  3. Ensuring that persons entitled to use a data processing system only have access to the Personal Data to which they have privilege of access, and that Personal Data cannot be read, copied, modified or removed without authorization in the course of Processing and/or after storage (data access control), Personal Data is accessible and manageable only by properly authorized staff.
  4. Ensuring that it is possible to check and establish whether and by whom Personal Data have been entered into data processing systems, modified or removed.
  5. Ensuring that Personal Data is protected against accidental destruction or loss.
  6. Ensuring that Personal Data which is collected for different purposes may be Processed separately and data from different Data Controllers’ environments is logically segregated on Data Processor’s systems.

9. Dispute Resolution

This DPA will be governed and construed in accordance with the law of Netherlands. Each Party will create an escalation process and provide a written copy to the other Party within five (5) business days of any dispute arising out of or relating to this DPA. The escalation process will be used to address disputed issues related to the performance of this DPA, including but not limited to technical problems. The Parties agree to communicate regularly about any open issues or process problems that require prompt and accurate resolution as set forth in their respective escalation process documentation. The Parties will attempt in good faith to resolve any dispute arising out of or relating to this DPA, before and as a prior condition for commencing legal proceedings of any kind, first as set forth above in the escalation process and next by negotiation between executives who have authority to settle the controversy and who at a higher level of management than the persons with direct responsibility for administration of this DPA. Any Party may give the other Party written notice of any dispute not resolved in the normal course of business. Within two (2) business days after delivery of the notice, the receiving Party shall submit to the other a written response. The notice and the response will include (a) a statement of each Party’s position and a summary of arguments supporting that position and (b) the name and title of the executive who will represent that Party and of any other person who will accompany the executive. Within five (5) business days after delivery of the disputing Party’s notice, the executives of both Parties shall meet at a mutually acceptable time and place, including telephonically, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one Party to the other will be honored. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.

Terms for Data Processors

Data Processors are typically the Parties which provide hosting, fraud detection and other supplementary services on behalf of the other Party.

Categories of Personal Data and Purpose of Processing

In order to perform the Services the Party acting as a customer authorizes and requests that the Party acting as a Service provider process the following Personal Data of mobile app users and other individuals engaged into relationship with the customer:

  • application id
  • publisher id
  • android id
  • SDK version
  • application source
  • device id/IMEI
  • device model
  • device specifications
  • OS type/version
  • IP address
  • local time
  • carrier
  • device location
  • language
  • network type
  • user agent
  • name
  • email
  • IM username
  • company name

The Party acting as a Service provider processes the Personal Data according to the applicable law and the terms of this DPA for the purposes specified in the agreement covering provision of the Services including hosting, fraud protection and technical maintenance and analytics services.

Responsibility of the Processor

The Processor shall Process Personal Data solely for the provision of the Services, and agrees to:

  1. Process and use Personal Data for the purposes set forth in this DPA or only on documented instructions from the Controller and for no other purpose except with the express prior written consent of the Controller;
  2. Not divulge Data to third parties except to those of its employees, agents and subcontractors who are engaged in the Processing of the Data and are subject to the binding obligations or except as may be required by any law or regulation;
  3. Implement appropriate technical and organizational measures to safeguard the Data from unauthorized or unlawful Processing or accidental loss, destruction or damage, and that having regard to the state of technological development and the cost of implementing any measures, such measures shall ensure a level of security appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss, destruction or damage and to the nature of the Data to be protected;
  4. Inform the Controller as soon as possible in the event of the exercise by Data Subjects of any of their rights under the data protection laws in relation to the Data, and, if necessary, assists the Controller in complying with the obligation to respond to those requests;
(e) Not Process or transfer the Data outside of the European Union except such transfers are made on appropriate basis;
  5. Provide that data processing takes place only for as long as the Party acting as a customer uses the Services and delete or return all personal data to the Controller as requested at the end of the DPA;
  6. Notify the Controller in case of its instruction may infringe GDPR or other data protection law of the EU or a member state.

Responsibility of the Controller

The Controller agrees that it shall ensure compliance at all times with the applicable data protection law, and, in particular, the Controller shall ensure that any disclosure of Personal Data made by it to the Processor is made with the Data Subject’s consent or is otherwise lawful. The control of Personal Data remains with the Controller.

Rights of Data Subjects

Processor shall pass on to the Controller any requests of an individual Data Subject to delete, release, correct or block Personal Data Processed under the DPA.

Processor will grant the Controller with electronic access to the digital environment that holds Personal Data to permit the Controller to delete, release, correct or block access to specific Personal Data or, if that is not practicable and to the extent permitted by applicable law, follow Controller’s written instructions to delete, release, correct or block access to Personal Data.

Cross Border and Onward Data Transfer

The Processor will undertake data protection and confidentiality obligations consistent with applicable data protection laws where a Processor processes Personal Data in or from a country that has not received an “adequacy” finding, and will execute Model Clauses incorporating security requirements consistent with those of this DPA.

Subprocessing

The Processor will enter into contracts with subprocessors which provide that the subprocessor will undertake data protection and confidentiality obligations consistent with applicable data protection laws.

Where the Processor subcontracts its obligations under the DPA it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on Processor under the DPA. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the Processor shall remain fully liable to the Controller for the performance of the subprocessor’s obligations under such agreement.

The Data Controller may request that the Processor audit the subprocessor or provide confirmation that such an audit has occurred (or, where available, obtain or assist Data Controller in obtaining a third-party audit report concerning subprocessor’s operations) to ensure compliance with such obligations. The Controller also will be entitled, upon written request, to receive copies of the relevant terms of the Processor’s agreement with subprocessors that may process Personal Data, unless the agreement contains confidential information, in which case the Processor may provide a redacted version of the agreement.

Terms for Joint Controllers

Joint Controllers are typically the Parties which jointly determine means and purposes of processing, including (but not limited to) the Company, publishers, advertisers (either direct or indirect), and ad mediators.

Categories of Personal Data and Purpose of Processing

In order to perform the Services the Party acting as a joint controller shall bear all respective responsibilities as a controller and will process the Personal Data related to various parameters of profiles of mobile app users.

Joint Controllers process the Personal Data according to the applicable law and the terms of this DPA for the purposes specified in the agreement covering provision of the Services including ad targeting.

Responsibilities of Joint Controllers

Joint Controllers shall Process Personal Data solely for the provision of the Services, and agree to:

  1. Process and use Personal Data on a lawful basis including Data Subject’s consent for the specific and clear purposes;
  2. Not divulge Data to third parties except to those of its employees, agents and subcontractors who are engaged in the Processing of the Data and are subject to the binding obligations or except as may be required by any law or regulation;
  3. Implement appropriate technical and organizational measures to safeguard the Data from unauthorized or unlawful Processing or accidental loss, destruction or damage, and that having regard to the state of technological development and the cost of implementing any measures, such measures shall ensure a level of security appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss, destruction or damage and to the nature of the Data to be protected;
  4. Inform other Controllers as soon as possible in the event of the exercise by Data Subjects of any of their rights under the data protection laws in relation to the Data, or obtaining/withdrawal of consent and, if necessary, assists the other Controllers in complying with the obligation to respond to those triggers;
  5. Not Process or transfer the Data outside of the European Union except such transfers are made on appropriate basis;
  6. Notify the other Controller in case of its instruction may infringe GDPR or other data protection law of the EU or a member state;

provided that the obligations above are applicable within the scope of existing relations of Joint Controllers.

The Controllers agree that they shall ensure compliance at all times with the applicable data protection law, and, in particular, the Controllers shall ensure that any disclosure of Personal Data is made with the Data Subject’s consent or is otherwise lawful.

Responsibility of the Publishers

Each Joint Controller acting as a publisher is the primary contact point for Data Subjects in respect of consent obtaining/withdrawal and exercising Data Subject’s rights. The publishers are ultimately liable for ensuring that the Personal Data is Processed lawfully and shall provide Data Subjects with all required information and ability to exercise the rights of the Data Subjects. Other Joint Controllers rely on the information provided by the Publishers.

The Publisher will defend, indemnify and hold harmless the other Joint Controllers, their affiliates, independent contractors, service providers and consultants, and its and their respective directors, officers, employees and agents, from and against any third party or government claims, suits or actions and any resulting damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to your violation of any terms of this DPA and your processing of personal data.

Rights of Data Subjects

Each Joint Controller shall pass on to the other Controllers any requests of an individual Data Subject to delete, release, correct or block Personal Data Processed under the DPA.

Each Controller will permit the other Controllers to delete, release, correct or block access to specific Personal Data or, if that is not practicable and to the extent permitted by applicable law, follow Controller’s written instructions to delete, release, correct or block access to Personal Data.

Cross Border and Onward Data Transfer

Each Controller will undertake data protection and confidentiality obligations consistent with applicable data protection laws where a Controller processes Personal Data in or from a country that has not received an “adequacy” finding, and will execute Model Clauses incorporating security requirements consistent with those of this DPA.

Engaging Other Controllers

The Joint Controllers will enter into contracts with other Joint Controllers provided that such new Joint Controllers will Process the Personal Data according to this DPA. Each Joint Controller shall take reasonable efforts to ensure that other Joint Controllers ara aware of each others’ existence and roles.

Model Clauses for the transfer of personal data to third countries from the Community to third countries (controller to controller transfers)

Definitions

For the purposes of the clauses:

  1. “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in applicable law (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
  2. “the data exporter” shall mean the controller who transfers the personal data;
  3. “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
  4. “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.

The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.

I. Obligations of the data exporter

The data exporter warrants and undertakes that:

  1. The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
  2. It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
  3. It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
  4. It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
  5. It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.

II. Obligations of the data importer

The data importer warrants and undertakes that:

  1. It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
  2. It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
  3. It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
  4. It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
  5. It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
  6. At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
  7. Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
  8. It will process the personal data, at its option, in accordance with the data processing principles set forth in Annex A.
  9. It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
    1. the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
    2. the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
    3. data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
    4. with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.

III. Liability and third party rights

  1. Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
  2. The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).

IV. Law applicable to the clauses

These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.

V. Resolution of disputes with data subjects or the authority

  1. In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
  2. The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
  3. Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.

VI. Termination

  1. In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
  2. In the event that:
    1. the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
    2. compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
    3. the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
    4. a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
    5. a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs

    then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.

  3. Either party may terminate these clauses if (i) any Commission positive adequacy decision under is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
  4. The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.

VII. Variation of these clauses

The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.

VIII. Description of the Transfer

The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.

ANNEX A
DATA PROCESSING PRINCIPLES

  1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
  2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
  3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
  4. Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
  5. Rights of access, rectification, deletion and objection: Data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
  6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
  7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
  8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
    (a):

    1. such decisions are made by the data importer in entering into or performing a contract with the data subject, and
    2. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.

    or (b):

    1. where otherwise provided by the law of the data exporter.

ANNEX B
DESCRIPTION OF THE TRANSFER

Data Subjects: mobile app users

Purposes: ad targeting

Categories of Data:

  • application id
  • publisher id
  • android id
  • SDK version
  • application source
  • device id/IMEI
  • device model
  • device specifications
  • OS type/version
  • IP address
  • local time
  • carrier
  • device location
  • language
  • network type
  • user agent

Recipients: ad networks, advertisers, advertising data brokers

MODEL CLAUSES (PROCESSORS)

For the purposes of transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection the Parties agreed on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1
Definitions

For the purposes of the Clauses:

  1. ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in applicable law on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  2. ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of applicable law;
  4. ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  6. ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2
Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3
Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4
Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of applicable law;
  7. to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer 

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
    2. any accidental or unauthorised access; and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  6. at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  8. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
    The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7
Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8
Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9
Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10
Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11
Sub-processing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12
Obligation after the termination of personal data-processing services

  1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1
to the Standard Contractual Clauses

Data exporter

The data exporter is mobile ad network.

Data importer

The data importer is service provider of hosting and analytics services.

Data subjects

The personal data transferred concern the following categories of data subjects: mobile app users and other individuals engaged into relationship with the data exporter.

Categories of data

The personal data transferred concern the following categories of data:

  • application id
  • publisher id
  • android id
  • SDK version
  • application source
  • device id/IMEI
  • device model
  • device specifications
  • OS type/version
  • IP address
  • local time
  • carrier
  • device location
  • language
  • network type
  • user agent
  • name
  • email
  • IM username
  • company name

Processing operations

The personal data transferred will be subject to the following basic processing activities:
hosting, fraud detection, ad tracking.

Appendix 2
to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):

Each Party shall ensure that it implements and maintains compliance with appropriate technical and organizational security measures for the Processing of the respective Data. Accordingly, each Party will implement the following measures:

  1. Prevention of unauthorized persons from gaining access to data processing systems in which Personal Data are Processed.
  2. Authentication via passwords and logging of access on several levels.
  3. Ensuring that persons entitled to use a data processing system only have access to the Personal Data to which they have privilege of access, and that Personal Data cannot be read, copied, modified or removed without authorization in the course of Processing and/or after storage (data access control), Personal Data is accessible and manageable only by properly authorized staff.
  4. Ensuring that it is possible to check and establish whether and by whom Personal Data have been entered into data processing systems, modified or removed.
  5. Ensuring that Personal Data is protected against accidental destruction or loss.
  6. Ensuring that Personal Data which is collected for different purposes may be Processed separately and data from different Data Controllers’ environments is logically segregated on Data Processor’s systems.
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