Legal

Airship Data Transfer Addendum

For Airship Customer Engagement Platform and Apptimize Platform

This Data Transfer Addendum forms part of the Master Subscription Agreement or the online Terms of Subscription Service or such other written or electronic agreement between Airship and Customer for the purchase of Airship services, including any existing Data Processing Addendum thereto (the “Agreement”) between the customer that has executed this Addendum 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 international transfer 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.

In the course of providing the Service to Customer pursuant to the Agreement, Airship may transfer 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 transfers Customer Data that is subject to Data Protection Laws in the course of providing the Service pursuant to the Agreement.

THIS DATA TRANSFER ADDENDUM (“DTA”) is made as of the Effective Date (defined below)

Between

(1) An Airship customer on the date this Addendum is fully executed (“Customer”); and

(2) The Airship entity which is party to the Agreement being: Airship Group Inc.; Urban Airship UK Limited; Apptimize LLC or any Affiliate of such entities, as applicable (“Airship”).

Each a “Party” and together, the “Parties.”

INSTRUCTIONS

To execute this DTA, Customer must:

(a) complete the information in the section above;

(b) verify that the information is accurate, complete and is the same as the information about Customer provided in the Agreement; and

HOW THIS DTA APPLIES

This DTA will be deemed legally binding upon receipt by Airship of a fully executed copy pursuant to the instructions above and supersedes any prior agreements between Customer and Airship concerning the international transfer of Personal Data.

With effect from 16 July 2020 (“Effective Date”), to the extent that Airship processes any Personal Data protected by Data Protection Laws under the Agreement and/or that originates from the EEA, Switzerland 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 the subject of such an adequacy decision), 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”.

ANNEX 1 – STANDARD CONTRACTUAL CLAUSES

INTRODUCTION

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.

AGREED TERMS

1. Definitions

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. Liability

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 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

7.1 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:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

7.2 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.

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. Sub-processing

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.

11.3 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.

11.4 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.

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.

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

Data exporter

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.

Data importer

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: Airship Group, Inc., that provides technical support and account management services in connection with the Airship Customer Engagement SaaS platform (“Service”) and related services to its customers.

Data subjects

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.

Processing operations

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.

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 security measures applicable to the specific Service purchased by Customer described at https://www.airship.com/legal/security-overview.