Airship Data Processing Addendum through December 2020
For Airship Customer Engagement Platform and Apptimize Platform
AIRSHIP DATA PROCESSING ADDENDUM (Revised August 2020) – Previous Version
This Data Processing Addendum (“Addendum”) forms part of the Master Subscription Agreement or the online Terms of Subscription Service (the “Agreement”) between the customer that has executed this Addendum here and is an Airship customer on the date this Addendum is fully executed (“Customer”) and Airship to reflect the parties’ agreement with regard to the processing of Personal Data in connection with Customer’s use of the Service, in accordance with the requirements of Data Protection Laws. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
Customer enters into this Addendum on behalf of itself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of its Authorized Affiliates, if and to the extent Airship processes Personal Data for which such Authorized Affiliates qualify as data controller. For the purposes of this Addendum only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates.
In the course of providing the Service to Customer pursuant to the Agreement, Airship may process Personal Data on behalf of Customer, and the Parties agree to comply with the following provisions, each acting reasonably and in good faith. This Addendum applies where and only to the extent that Airship processes Customer Data that is subject to Data Protection Laws on behalf of Customer as Data Processor in the course of providing Service pursuant to the Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity
“Airship” means Urban Airship, Inc. d/b/a Airship, a company incorporated in Delaware, Urban Airship UK Limited, a company registered in England and Wales, Apptimize LLC (“Apptimize”) and any other Affiliate of Airship.
“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws, and (b) is permitted to use the Service pursuant to the Agreement between Customer and Airship, but has not signed its own Order Form with Airship and is not a “Customer” as defined under the Agreement.
“Customer Data” means any Personal Data that Airship processes as a Data Processor on behalf of Customer or an Authorized Affiliate.
“Data Controller” means the entity which determines the purposes and means of the processing of Personal Data. Customer or its Authorized Affiliate is the Data Controller with respect to Customer Data.
“Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller. Airship, including its Affiliates, is the Data Processor with respect to Customer Data under EU Data Protection Laws, and “service provider” under the CCPA.
“Data Protection Laws” means EU Data Protection Laws and, and to the extent applicable, the data protection or privacy laws of the United States of America, including without limitation, the California Consumer Privacy Act of 2018, as amended (the “CCPA”), or of any other applicable country.
“EEA” means, for purposes of this Addendum, the European Economic Area and Switzerland.
“EU Data Protection Laws” means (i) Regulation 2016/679 of the European Parliament and of the Council 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 may be amended from time to time (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
“Personal Data” shall have the same meaning as in the applicable Data Protection Laws, provided, that with respect to this Addendum, the reference is to Personal Data processed in relation to Customer’s access to and use of the Service.
“Request” means a written request from a Data Subject to exercise his/her specific data subject rights under the Data Protection Laws in respect of Personal Data.
“Security Measures” means the Security Measures applicable to the specific Service purchased by Customer described at https://www.airship.com/legal/security-overview.
“Service” means, to the extent specified in the applicable Order Form, (1) the Airship Customer Engagement Platform, including the Airship SDKs and APIs, and programs, features, functions, developer tools, report formats and any updates or upgrades of any of the foregoing made generally available by Airship (“Airship Service”), and (2) the Apptimize Testing Platform, including the Apptimize SDKs and APIs, and programs, features, functions, developer tools, report formats and any updates or upgrades of any of the foregoing made generally available by Airship (“Apptimize Service”).
“Standard Contractual Clauses” means the agreement executed by and between Customer and Airship and attached hereto as Attachment 1 pursuant to the European Commission’s decision of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council.
“Sub-processor” means any Data Processor engaged by Airship to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or this Addendum.
The terms, “Data Subject”, “Member State”, “Processing”, “Process” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. PROCESSING OF PERSONAL DATA
2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Data Controller of Customer Data, and Airship will process Customer Data only as a Data Processor acting on the instructions of Customer.
2.3 Airship’s Processing of Customer Data. Airship shall only process Customer Data on behalf of and in accordance with Customer’s instructions for the period set out in the Agreement. Instructions by Customer to Airship to process Customer Data include: (i) processing in accordance with the Agreement and applicable Order Form(s); (ii) processing initiated by Account Users in their use of the Service; (iii) processing to comply with other reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement; and (iv) processing in accordance with all configuration of the Service by or for Customer. Airship shall, as soon as reasonably practicable upon becoming aware of receiving such instruction, inform Customer if, in Airship’s opinion, any instructions provided by Customer under this clause infringe the GDPR.
2.4 Details of Data Processing.
(a) Subject matter: The subject matter of the data processing under this Addendum is the Customer Data.
(b) Duration: As between Airship and Customer, the duration of the data processing under this Addendum is until the termination of the Agreement in accordance with its terms.
(c) Purpose: The purpose of the data processing under this Addendum is the provision of the Service to the Customer and the performance of
Airship’s obligations pursuant to the Agreement (including this Addendum) or as otherwise agreed by the parties.
(d) Nature of the processing: Airship provides a subscription to the Airship Service and/or the Apptimize Service each provided as a cloud service, as described in the Agreement.
(e) Categories of data subjects: Any individual accessing and/or using the Service through the Customer’s Account as authorized by Customer (“Account Users”); and any end user of a mobile application, web domains, devices, software applications and/or communication channels owned or controlled by Customer and to or with respect to whom Customer sends notifications or processes Personal Data via the Service (collectively, “End Users”).
(f)Types of Customer Data:
• Customer and Account Users: Account User’s login credentials to the Service;
• End Users: Customer may process Personal Data via the Service, the extent of which is determined by Customer based on Customer’s configuration and use of the Service, which may include, at Customer’s sole discretion and based on the Service package subscribed by the Customer, but is not limited to the following categories of Personal Data: Push tokens, names, mobile phone numbers (if data exporter uses the SMS/MMS notification channel), email addresses (if Customer uses the email notification channel), online identifiers, and location data (if Customer’s order includes the location feature).
• Special classes of data. Customer is contractually prohibited from processing via the Service any “special categories of data” as defined in Data Protection Laws as well as any Prohibited Data.
3. RIGHTS OF DATA SUBJECTS AND COOPERATION
3.1 Data Subject Requests. The Service provides Customer with a number of controls that Customer may use to retrieve, correct, delete, or restrict Customer Data, which Customer may use to assist it in connection with its obligations under the Data Protection Laws including, for example, its obligations relating to responding to Requests from Data Subjects or applicable data protection authorities. To the extent Customer is unable to independently access the relevant Customer Data within the Service, Airship will provide reasonable cooperation to assist Customer, at Customer’s cost to the extent legally permissible, to respond to any requests from Data Subjects or applicable data protection authorities relating to the processing of Personal Data under the Agreement and this Addendum. In the event any such request is made directly to Airship, Airship will not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. If Airship is required to respond to such a request, Airship will promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
3.2 Records of Processing. The Service provides Customer with ability to access certain Customer Data to provide records of processing. To the extent Customer is unable to independently access the relevant records of processing of Customer Data within the Service, Airship will provide reasonable cooperation to assist Customer in a timely manner as is required by Customer to demonstrate Airship’s compliance with its obligations under the Data Protection Laws and under this Addendum.
3.3 Government Requests. If any government agency or body sends Airship a demand for Customer Data (for example, through a subpoena or court order), Airship will attempt to redirect the government agency or body to request that data directly from Customer. As part of this effort, Airship may provide Customer’s basic contact information to the government agency or body. If compelled to disclose Customer Data to a government body or agency, then Airship will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Airship is legally prohibited from doing so.
3.4 Data Protection Impact Assessments. To the extent Airship is required under Data Protection Laws, Airship will provide reasonably requested information regarding the Service to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
4. AIRSHIP PERSONNEL
Airship shall ensure that its personnel engaged in the processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Airship shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
5.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) Airship’s Affiliates may be retained as Sub-processors; and (b) Airship may engage third-party Sub-processors in connection with the provision of the Service. Airship has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those described in Security Measures with respect to the protection of Personal Data to the extent applicable to the nature of the Service provided by such Sub-processor. Airship shall make available to Customer the current list of Sub-processors for the Service by posting that list online at: https://www.airship.com/legal/subprocessors.
5.2 Objection Right for new Sub-processors. If Customer has a reasonable basis to object to Airship’s use of a new Sub-processor, Customer shall notify Airship promptly in writing within seven (7) days after receipt of Airship’s notice regarding such new Sub-processor. In the event Customer objects to a new Sub-processor(s) on a reasonable basis, Airship will use reasonable efforts to work in good faith with Customer to find an acceptable, reasonable, alternate solution. If the parties are not able to agree to an alternate solution within a reasonable time (no more than 30 days), Customer may terminate the applicable Order Form(s) in respect only to the specific Service which cannot be provided by Airship without the use of the objected-to new Sub-processor, by providing written notice to Airship.
6.1 Controls for the Protection of Personal Data. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Airship shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, the measures described in the Security Measures. Customer is responsible for reviewing the information made available by Airship relating to data security and making an independent determination as to whether the Service meets Customer’s requirements. Customer acknowledges that the Security Measures are subject to technical progress and development and that Airship 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 Service purchased by the Customer.
6.2 Third-Party Certifications. Airship has obtained the third-party certifications and audits set forth in the Security Measures. Upon Customer’s written request at reasonable intervals, Airship shall provide an executive summary of Airship’s then most recent third-party audits or certifications, as applicable, that Airship generally makes available to its customers at the time of such request.
6.3 Customer Responsibilities. Notwithstanding the above, Customer agrees that except to the extent expressly provided in this Addendum, Customer is responsible for its secure use of the Service, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Service and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Service.
6.3 Audits. Upon Customer’s request, and subject to the confidentiality obligations set forth in the Agreement, Airship shall make available to Customer information regarding the Airship’s compliance with the obligations set forth in this Addendum in the form of the third-party certifications and audits described in the Security Measures. Customer may contact Airship in accordance with the “Notices” Section of the Agreement to schedule an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse Airship for any time expended for any such on-site audit at the Airship’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Airship shall mutually agree upon the scope, timing, and duration of the audit. Customer shall promptly notify Airship with information regarding any non-compliance discovered during the course of an audit.
7. DATA BREACH MANAGEMENT AND NOTIFICATION
Airship maintains data breach management policies and procedures specified in the Security Measures and shall, to the extent permitted by law, notify Customer without undue delay (no more than 72 hours of becoming aware) of any actual breach of security of the Service leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data on the Service of which Airship becomes aware (a “Data Breach”) and provide details of the Data Breach to the Customer. To the extent such Data Breach is caused by a violation of the requirements of this Addendum by Airship, Airship shall identify and remediate the cause of such Data Breach. Airship shall assist Customer (taking into account the nature of processing and the information available to Airship) in relation to Customer’s obligations under Data Protection Laws with respect to: (a) notifications to the Supervisory Authority and/or communications to data subjects by Customer in response to any Data Breach; and (b) Customer’s compliance with its respective obligations under the applicable Data Protection Laws with respect to the security of processing.
8. DELETION OF CUSTOMER DATA
Airship shall delete Customer Data in accordance with the procedures and timeframes specified in the Agreement and the Data Retention Schedule available online at: https://docs.airship.com/reference/general/#data-retention-schedule. The parties agree that the certification of deletion of Personal Data shall be provided by Airship to Customer only upon Customer’s written request. Within ninety (90) days of
termination or expiration of the Agreement, Airship will delete all Customer Data (including copies) in its possession or control, save that this requirement will not apply to the extent Airship is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data Airship will securely isolate and protect from any further processing, except to the extent required by applicable law.
9. INTERNATIONAL TRANSFERS
9.1 Processing Locations. Airship stores Customer Data in the United States or in the European Union, based on the selection made by the Customer as specified on the applicable Order Form. If no location is stated on the Order Form, Airship stores Customer Data in the United States. For purposes of providing the Service, Customer Data may transfer from the originating location of Customer Data to the Service located in the United States or the European Union, as applicable. Additionally, for purposes of providing the Service including technical support, error fixes and operation purposes, Customer Data may be accessed from or relevant parts of Customer Data copied to locations where Airship’s Affiliates are located.
9.2 Standard Contractual Clauses. To the extent that Airship processes any Personal Data protected by Data Protection Laws under the Agreement and/or that originates from the EEA or UK, in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for Personal Data (including the UK where the UK has ceased to be a member of the European Union and has not been so designated), Airship and Customer hereby enter into the Standard Contractual Clauses as set out in Annex 1 in respect of such transfer. For the purposes of Annex 1, the Customer shall be deemed to be the “data exporter” and Airship shall be deemed to be the “data importer”.
10. RELATIONSHIP WITH THE AGREEMENT
10.1 Status of Agreement. The parties agree that this Addendum will replace any existing data protection addendum or similar agreement the parties may have previously entered into in connection with the Service. Except for the changes made by this Addendum, the Agreement remains unchanged and in full force and effect. If there is any conflict between this Addendum and the Agreement, this Addendum will prevail to the extent of that conflict.
10.2 Claims. Any claims brought under or in connection with this Addendum will be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. Other than liability that may not be limited under applicable law, each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this Addendum, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all Addenda together.
10.3 No Third Party Beneficiary. No one other than a party to this Addendum, its successors and permitted assignees will have any right to enforce any of its terms. Any claims against Airship or its Affiliates under this Addendum will be brought solely against the entity that is a party to the Agreement. Customer further agrees that any regulatory penalties or other liability incurred by Airship in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this Addendum or any applicable Data Protection Laws will count toward and reduce Airship’s liability under the Agreement as if it were liability to the Customer under the Agreement.
10.4 Governing Law. This Addendum will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
11. LEGAL EFFECT
This Addendum shall only become legally binding between Customer and Airship when executed as described in the introductory paragraphs to this Addendum.
Annex 1 – Standard Contractual Clauses
Both parties have 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.
For the purposes of the clauses:
(a) “personal data“, “special categories of data“, “process/processing“, “controller“, “processor“, “data subject” and “supervisory authority” shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) the “data exporter” means the controller who transfers the personal data;
(c) 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 Article 25(1) of Directive 95/46/EC;
(d) 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;
(e) 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; and
(f) “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.
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.
3. Third-party beneficiary clause
3.1 The data subject can enforce against the data exporter this clause, clause4(b) to 4(i), clause 4(a) to 4(e), and 4(g) to 4(j), clause 6.1 and 6.2, clause 7, clause 8.2, and clause 9 to 12as third-party beneficiary.
3.2 The data subject can enforce against the data importer this clause, clause 5(a) to 5(e) and 5(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.
3.3 The data subject can enforce against the sub-processor this clause, clause 5(a) to 5(e) and 5(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.
3.4 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.
4. Obligations of the data exporter
The data exporter agrees and warrants:
(a) 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;
(b) 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;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) 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;
(e) that it will ensure compliance with the security measures;
(f) 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 Directive 95/46/EC;
(g) 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;
(h) 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;
(i) 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
(j) that it will ensure compliance with clause 4(a) to 4(i).
5. Obligations of the data importer
The data importer agrees and warrants:
(a) 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;
(b) 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;
(c) that it has implemented the technical and organisational security measures specified in appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i)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;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) 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;
(f) 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;
(g) 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;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the clauses to the data exporter.
6.1 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.
6.2 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 or 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.
6.3 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.
7. Mediation and jurisdiction
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:
7.1 to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
7.2 to refer the dispute to the courts in the Member State in which the data exporter is established.
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.
8. Co-operation with supervisory authorities
8.1 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.
8.2 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.
8.3 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).
9. Governing law
The clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
11.1 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.
11.2 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.
11.4 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.
11.5 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.
12. Obligation after the termination of personal data-processing services
12.1 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.
12.2 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
This Appendix forms part of the clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
The data exporter is (please specify briefly your activities relevant to the transfer):
The entity that signed the Data Processing Addendum to which this Appendix 1 is attached.
The data importer is (please specify briefly activities relevant to the transfer):
For data exporters transferring Personal Data from EEA countries (other than the United Kingdom) or Switzerland: Urban Airship UK Limited, incorporated in the United Kingdom (and part of the Airship group of companies), that provides technical support and account management services in connection with the Airship Customer Engagement SaaS platform (“Service”) and related services to its customers.
For all data exporters: Urban Airship, Inc. d/b/a Airship, that provides technical support and account management services in connection with the Airship Customer Engagement SaaS platform (“Service”) and related services to its customers.
The personal data transferred concern the following categories of data subjects (please specify):
Any individual accessing and/or using the Service through the data exporter’s Account as authorized by data exporter (“Account Users”); and any end user of a mobile application, web domains, devices, software applications and/or communication channels owned or controlled by data exporter and to or with respect to whom data exporter sends notifications or processes personal data via the Service (collectively, “End Users”).
Categories of data
The personal data transferred concern the following categories of data (please specify):
- Data exporter and Account Users: Account User’s login credentials to the Service;
- End Users: Data exporter may process personal data via the Service, the extent of which is determined by data exporter based on data exporter’s configuration and use of the Service, which may include, at data exporter’s sole discretion based on the Service package subscribed by the data exporter, but is not limited to the following categories of personal data: Push tokens, names, mobile phone numbers (if data exporter uses the SMS/MMS notification channel), email addresses (if data exporter uses the email notification channel), online identifiers, and location data (if data exporter’s order includes the location feature).
Special categories of data
Data exporter is contractually prohibited from processing via the Service any “special categories of data” as defined in Data Protection Laws as well as any individual financial data, credit or debit card numbers, individual health information, or government issued identification numbers.
The personal data transferred will be subject to the following basic processing activities (please specify):
Data importer provides a subscription to its notification and data platform, as described in the Master Subscription Agreement or the online Terms of Subscription Service entered into between the data exporter and the data importer.
Appendix 2 To the Standard Contractual Clauses
Description of the technical and organisational security measures implemented by the data importer in accordance with clauses 4(d) and 5(c) (or document/legislation attached):
The Data Importer shall implement and maintain technical and organizational security measures as set out in Section 6 of the Data Processing Addendum entered into between the Data Exporter and the Data Importer.