Data Processing Terms

This Global Data Processing Addendum (“Addendum”), effective as of the Addendum Effective Date (as defined below), specifies the global data protection obligations of Zeta Global Corp (“Zeta”) under any agreement by which Zeta handles Customer’s Personal Information (each, an “Agreement”) and is between Zeta and Customer entity identified on the signature page below (“Customer).

This Addendum applies to the Processing and Co-Controlling of Personal Information carried out by Zeta in connection with Zeta’s services (the “Services”) provided to Customer. For avoidance of doubt, any right or obligation attaching to Customer shall also attach to Customer’s affiliates directly. This Addendum supersedes any less protective data processing addenda or terms pertaining to data processing previously entered into between the parties.

1. ORDER OF PRECEDENCE & INTERPRETATION

  • In this Addendum, capitalized terms shall have the meanings set out in Appendix 1 (Definitions and Details of Processing). In the event that any terms of this Addendum and its appendices are inconsistent with any other terms of the Agreement, the parties intend for the terms of this Addendum, its appendices, and the Agreement to be construed in the manner that permits Customer to fulfill its obligations under applicable law.

2. CUSTOMER OBLIGATIONS

  • With respect to Customer Data provided to Zeta, Customer represents and warrants that it has full right to and in any Customer Data to transmit same to Zeta as set forth herein or in an applicable SOW.
  • Customer, for the purposes of this Addendum, is not deemed under the California Consumer Privacy Act of 2018 (“CCPA”) to sell Personal Information to Zeta. Further, Zeta acts as a Service Provider providing a Business Purpose as those terms are defined by the CCPA.
  • With respect to Customer Data Processed by Zeta in connection with the Services or otherwise in the possession or control of Zeta:
    • as between Zeta and Customer, Zeta (together with any permitted assignee and/or subcontractor, subject to and as permitted under this Addendum) will be a Data Processor in all cases except to the extent Zeta may be deemed to act as a co-controller with Customer to perform necessary programmatic services including cross-publisher frequency capping, analysis, forecasting, and cookie syncing.
  • With respect to Zeta Data Processed, Zeta will exclusively act as a data controller.
  • Customer shall not sell, rent, lease, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic or other means, Zeta Data to another business, person, or third party for monetary or other valuable consideration without Zeta’s prior written consent.
  • Zeta shall not Process Customer Data for any purpose other than to perform the Services specified in the Agreement, pursuant to the directions of the Customer, or to perform programmatic services where it may be deemed to act as a co-controller, or as otherwise directed in writing by Customer.

3. ZETA OBLIGATIONS: COMPLIANCE WITH LAWS, DATA TRANSFER, AND DATA DELETION

  • Zeta shall, in Processing Personal Information, comply with all applicable privacy and data security laws, rules and regulations. Zeta will only Process Customer Personal Information pursuant to written directions from Customer as specified in the Agreement.
  • Zeta agrees to reasonably assist Client in performing any required audits. Customer will give advance notice and will conduct any such audit at its own cost during regular business hours and without unreasonable disruption to Zeta’s operations. For the avoidance of doubt, this provision will not require the Zeta to provide any Customer with access to the confidential information of Zeta’s other customers.
  • Zeta shall reasonably assist Customer in response to any requests from data protection authorities relating to the Processing of Personal Information in connection with the Agreement. In the event that any such request is made directly to Zeta, Zeta shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. If Zeta is required to respond to such a request, Zeta shall promptly notify the relevant Customer and provide it with a copy of the request unless legally prohibited from doing so.
  • Zeta will promptly and without undue delay and in any case no later than forty-eight (48) hours of becoming aware, inform Customer in the event of: (i) any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosures of, or access to, Personal Information (altogether, a “Security Incident”), or any reasonable suspicion of a Security Incident, regardless of its cause. At Customer’s direction, Zeta will provide all relevant information and assistance required by Customer to investigate, mitigate and respond to a Security Incident, including at a minimum, any information or assistance required by applicable privacy and data security laws, rules and regulations.
  • If Zeta subcontracts or assigns any of Zeta’s obligations to a third party, Zeta will in each case first ensure that each and every such subcontractor, partner or assignee (as the case may be) has undertaken in signed writing to comply with obligations no less protective than the obligations undertaken by Zeta in this Addendum; (b) perform appropriate due diligence to ensure that all subcontractors, partners and assignees can meet all Zeta obligations in the Agreement, including all requirements related to features, functionality and assistance necessary for Data Subject Requests; and (c) remain fully liable for the performance of each subcontractor, partner and/or assignee.
  • Where Zeta Processes Personal Information from a Restricted Country outside the European Union, European Economic Area, or a country in respect of which a valid adequacy decision has been issued by the European Commission or adequacy otherwise determined in another valid method under applicable data protection laws then Zeta shall comply with Section 3(g).
  • Zeta agrees to comply with the obligations set out in the Standard Contractual Clauses for the transfer of Personal Information to data Processors and Controllers established in third countries adopted by the European Commission published under document number C(2010) 593 2010/87/EU and C(2004) 2004/915/EC (the “Standard Contractual Clauses”) and incorporated herein by reference. In particular, and without limiting the above obligation:
    • Zeta agrees that its obligations under the Standard Contractual Clauses shall be governed by the law(s) of the Member State(s) (or Switzerland or the United Kingdom) in which Customers are established; and
    • the details of the appendices applicable to the Standard Contractual Clauses are set out in Appendix 1 to this Addendum.
  • Zeta will provide all other reasonable assistance and execute such agreements as may be necessary to legitimize any Processing or data transfer of Personal Information to Zeta or a subcontractor and to ensure an adequate level of protection for each Customer’s Personal Information. In the event that any competent authority holds that a data transfer mechanism relied on by the parties is invalid, or any supervisory authority requires transfers of Personal Information made pursuant to such decision to be suspended, then Customer may, at its discretion, require Zeta to cease Processing Personal Information, or co-operate with it to facilitate use of an alternative transfer mechanism.
  • 4. TERM

    The term of this Addendum commences as of the Addendum Effective Date and will end upon the termination of the Agreement. However, Zeta’ obligations hereunder continue in effect until any Customer data is returned or destroyed

    5. INDEMNITY

    Any indemnity obligations of Customer will be covered pursuant to the Agreement.

    6. GOVERNING LAW

    Unless otherwise required by the Standard Contractual Clauses or other data transfer requirements, this Addendum will be subject to the governing law identified in the Agreement without giving effect to conflict of laws principles.

    7. COUNTERPARTS

    This Addendum may be entered into by the parties in any number of counterparts. Each counterpart will, when executed and delivered, be regarded as an original, and all the counterparts will together constitute one and the same instrument.

    IN WITNESS WHEREOF, Zeta and Customer, on behalf of itself and its Customer s, have executed this Addendum, effective as of ___________________

(the “Addendum Effective Date”).

IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first mentioned above:

ZETA GLOBAL CORP.

By: _________________________________

Title: _________________________________

Date: _________________________________

[ENTER FULL LEGAL NAME OF RESELLER]

By: _________________________________

Title: _________________________________

Date: _________________________________

Article 1 APPENDIX 1: DEFINITIONS AND DETAILS OF PROCESSING

1. For purposes of this Addendum, the following terms will have the following meanings:

  • “Data Controller” means the person or entity which, alone or jointly with others, determines the purposes and means of the Processing of Personal Information;
  • “Data Processor” means the person or entity which Processes Personal Information on behalf of the Data Controller;
  • “Personal Information” shall mean: (1) any information relating to an identified or identifiable natural person; and (2) any information defined as “personally identifiable information,” “personal information,” “personal data” or similar terms as such terms are defined under applicable laws or regulations.
  • “Client Data” shall mean: the Personal Information provided by or collected on behalf of Client under the related Agreement.
  • “Zeta Data” shall mean: All Personal Information that is utilized or by Zeta in performance of the Services that is not Client Data.
  • “Process” or “Processing” means any operation or set of operations performed upon Personal Information, whether or not by automatic means; and
  • “Restricted Country” means a member state of the European Union, Hong Kong, Malaysia, Singapore, European Economic Area or Switzerland (or the United Kingdom at such point as the United Kingdom ceases to be a member state of the European Union).

 

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organization:

Address:

Tel. …; e-mail:

(the data exporter)

And

Name of the data importing organisation: Zeta Global

Address: 3 Park Ave., New York, NY 10016

Tel. …; fax …; e-mail: privacy@zetaglobal.com

Other information needed to identify the organisation: n/a

(the data importer)

each a ‘party’; together ‘the 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.

Clause 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 (1);

(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;

(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.

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:

(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 (i).

Clause 5

Obligations of the data importer (2)

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.

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:

(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.

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, namely …

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 (3). 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, namely …

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.

On behalf of the data exporter:

Name (written out in full): …

Position: …

Address: …

Other information necessary in order for the contract to be binding (if any):

Created with Raphaël 2.1.0

Signature

On behalf of the data importer:

Name (written out in full): …

Position: …

Address: …

Other information necessary in order for the contract to be binding (if any):

Created with Raphaël 2.1.0

Signature

________________

(1) Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.

(2) Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

(3) This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

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

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

Zeta Global is an omni-channel marketing company headquartered in the United States. It processes client-owned data for the purpose of online behavioral advertising.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Individual EU residents who are identified as recipients of advertising.

Categories of data

The personal data transferred concern the following categories of data (please specify):

Cookie IDs, Mobile advertising IDs, IP addresses and associated geographic data, marketing segment data based on browsing history.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

N/A

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

Data importer will use the data to perform Demand Side Platform (DSP) services in order to conduct real-time bidding and the placement of online behavioral advertising.

DATA EXPORTER

Name: …

Authorised Signature …

DATA IMPORTER

Name: …

Authorised Signature …

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) (or document/legislation attached): See attached Zeta Information Security FAQs.

1.1 Standard Contractual Clauses for international transfers from controller to controller:

1.1.1. Parties

Name of the data exporting organisation:

(The sender of the data)

Address and country of establishment:

Telephone:

Fax:

Email:

Other information needed to identify the organisation (eg a company number):

And

Name of the data importing organisation: Zeta Global

Address: 3 Park Ave., New York, NY 10016

Tel. …; fax …; e-mail: privacy@zetaglobal.com

Other information needed to identify the organisation: n/a

(the data importer)

1.2 Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data/sensitive 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’ shall mean the controller who transfers the personal data;

(c) ‘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

(d) “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.

1.3 Clause I. Obligations of the data exporter

The data exporter warrants and undertakes that:

(a) The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.

(b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.

(c) 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.

(d) 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.

(e) It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause 4, 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.

1.4 Clause II. Obligations of the data importer

The data importer warrants and undertakes that:

(a) 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.

(b) 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.

(c) 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.

(d) 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

(e) 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 2(e).

(f) 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 4 (which may include insurance coverage).

(g) 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.

(h) It will process the personal data, at its option, in accordance with:

• the data protection laws of the country in which the data exporter is established

________________

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

(a) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or

(b) 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

(c) 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 with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.

(d) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.

1.5 Clause III. Liability and third party rights

(a) 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.

(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses 2(b), 2(d),2(e), 3(a), 3(c), 3(d), 3(e), 3(h), 3(i), 4(a), 6, 7(d) and 8 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).

1.6 Clause 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 5(h), which shall apply only if so selected by the data importer under that clause.

1.7 Clause V. Resolution of disputes with data subjects or the authority

(a) 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.

(b) 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.

(c) 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.

1.8 Clause VI. Termination

(a) 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.

(b) In the event that:

(i) 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);

(ii) compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;

(iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;

(iv) 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

(v) 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.

(c) Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) 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.

(d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause 8(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred

1.9 Clause 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.

1.10 Clause 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 1(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.

1.11 Additional commercial clauses

1.11.1. Allocation of costs

Each party shall perform its obligations under these clauses at its own cost.

1.11.2. Priority of standard contractual clauses of standard contractual clauses

The Clauses take priority over any other agreement between the parties, whether entered into before or after the date the Clauses are entered into.
Unless the Clauses are expressly referred to and expressly amended, the parties do not intend that any other agreement entered into by the parties, before or after the date the Clauses are entered into, will amend the terms or the effects of the Clauses, or limit any liability under the Clauses, and no term of any such other agreement should be read or interpreted as having that effect.

1.11.3. Effective date of the Standard Contractual Clauses

The parties intend that these Clauses should only become effective if Art 44 of the General Data Protection Regulation (the “GDPR”) applies to a transfer of personal data from the EEA to the UK, because the UK has left the European Union, and the transfer is not permitted under Art 45.

On that basis, the Clauses will become effective on:

(i) the first date Article 44 GDPR applies to a transfer of personal data from the EEA to the UK, and that transfer is not permitted under Article 45 GDPR;

or

(ii) the date of the Standard Contractual Clauses, if later.

In this clause, “a transfer of personal data” has the same meaning as in Article 44 of the GDPR.

________________

1.11.4. Please complete:

1.11.5. On behalf of the data exporter:

Name (written out in full):

Position:

Address:

Other information necessary in order for the contract to be binding (if any):

Signature:

Name of the data importing organisation: Zeta Global

Address: 3 Park Ave., New York, NY 10016

Tel. …; fax …; e-mail: privacy@zetaglobal.com

Other information needed to identify the organisation: n/a

Other information necessary in order for the contract to be binding (if any):

________________

1.12 Annex A

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: As provided in Article 12 of Directive 95/46/EC, 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 (eg 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)(i) such decisions are made by the data importer in entering into or performing a contract with the data subject, and

(ii) 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) where otherwise provided by the law of the data exporter.

1.13 Annex B

1.13.1. Data subjects

The personal data transferred concern the following categories of data subjects.

• Customers and clients

1.13.2. Purposes of the transfer

The transfer is made for the following purposes:

• Advertising, marketing and public relations of the data exporter’s own business or activity, goods or services

• Accounting and auditing services

• Advertising, marketing and public relations for others, including public relations work, advertising and marketing, host mailings for other organisations, and list broking.

• Administration of justice, including internal administration and management of courts of law, or tribunals and discharge of court business.

• Data analytics, including profiling

• IT, digital, technology or telecom services, including provision of technology products or services, telecoms and network services, digital services, hosting, cloud and support services or software licensing

1.13.3. Categories of data

The personal data transferred concern the following categories of data.

• Personal details, including any information that identifies the data subject and their personal characteristics, including: name, address, contact details, age, date of birth, sex, and physical description

1.13.4. Recipients

The personal data transferred may be disclosed only to the following recipients or categories of recipients.

• IT, digital, technology and telecoms

1.13.5. Sensitive data

The personal data transferred concern the following categories of sensitive data.

• Not applicable

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1.13.6. Registration information

Data protection registration information of the data exporter (where applicable):

1.13.7. Optional additional information:

Additional useful information (storage limits and other relevant information):

Data importer contact details:

Name of the data importing organisation: Zeta Global

Address: 3 Park Ave., New York, NY 10016

Tel. …; fax …; e-mail: privacy@zetaglobal.com

Other information needed to identify the organisation: n/a

Data exporter contact details:

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