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This Data Processing Addendum ("Addendum" ), applies to agreements between Spocket Inc ("Spocket"), and entities who subscribe for Spocket’s services as a Retailer and who are subject toApplicable Law ("Retailer") (collectively referred to as the "Parties"), sets forth the terms and conditions relating to the privacy, confidentiality and security of Personal Data (as defined below)associated with services to be rendered by Spocket to Retailer pursuant to the sign up form andRetailer Terms entered into between the Parties (the "Agreement").
I. Definitions: Terms defined in the Retailer Terms shall have the same meaning in the Addendum. In addition:
B. "Data Controller" means a person who alone or jointly with others determines the purposes and means of the Processing of Personal Data.
C. "Data Processor" means a person who Processes Personal Data on behalf of theData Controller.
D. "Data Security Measures" means technical and organisational measures that are aimed at ensuring a level of security of Personal Data that is appropriate to the risk of the Processing, including protecting Personal Data against accidental or unlawful loss, misuse, unauthorised access, disclosure, alteration, destruction, and all other forms of unlawful Processing, including measures to ensure the confidentiality ofPersonal Data.
E. "Data Subject" means an identified or identifiable natural person to which thePersonal Data pertain.
F. "Instructions" means this Addendum and any further written agreement or documentation through which the Data Controller instructs the Data Processor to perform specific Processing of Personal Data
G. "Personal Data" means any information relating to an identified or identifiable natural person Processed by Spocket in accordance with Retailer’s Instructions pursuant to this Addendum; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
H. "Personal Data Breach" a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.
I. "Process", "Processed", or "Processing" means any operation or set of operations performed upon Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
J. "Services" means the services offered by Spocket and subscribed for by Retailer under the Master Agreement;
K. "Sub-Processor" means the entity engaged by the Data Processor or any furtherSub-Processor to Process Personal Data on behalf and under the authority of theData Controller.
II. Roles and Responsibilities of the parties
A. The Parties acknowledge and agree that Retailer is acting as a Data Controller, and has the sole and exclusive authority to determine the purposes and means of theProcessing of Personal Data Processed under this Addendum, and Spocket is acting as a Data Processor on behalf and under the Instructions of Retailer.
B. Ensure that any person authorised by Spocket to Process Personal Data in the context of the Services is only granted access to Personal Data on a need-to-know basis, is subject to a duly enforceable contractual or statutory confidentiality obligation.
III. Obligation of Spocket
Where Spocket acts as Data Processor on behalf of Retailer, Spocket agrees and warrants to:
A. Process Personal Data disclosed to it by Retailer only on behalf of and in accordance with the provision of the Services under the Sign-Up Form and RetailerTerms , unless Spocket is otherwise required by Applicable Law, in which case Spocket shall inform Retailer of that legal requirement before Processing thePersonal Data, unless informing the Retailer is prohibited by law on important grounds of public interest. Spocket shall promptly inform Retailer if, in Spocket’s opinion, an Instruction provided infringes Applicable Law
B. Spocket may store and process data, including Personal Data, in Canada, the US or other jurisdictions outside of the EEA. Spocket has and shall continue to enter into any written agreements as are necessary (in its reasonable determination) to comply with Applicable Law concerning any cross-border transfer of Personal Data, whether to or from Spocket.
C. Spocket may store and process data, including Personal Data, in Canada, the US or other jurisdictions outside of the EEA. Spocket has and shall continue to enter into any written agreements as are necessary (in its reasonable determination) to comply with Applicable Law concerning any cross-border transfer of Personal Data, whether to or from Spocket.
D. Inform Retailer promptly and without undue delay of any formal requests from DataSubjects exercising their rights of access, correction or erasure of their PersonalData, their right to restrict or to object to the Processing as well as their right to data portability, and not respond to such requests, unless instructed by the Retailer in writing to do so. Taking into account the nature of the Processing of PersonalData, Spocket shall assist Retailer, by appropriate technical and organisational measures and at Retailer’s cost, insofar as possible, in fulfilling Retailer’s obligations to respond to a Data Subject’s request to exercise their rights with respect to theirPersonal Data.
E. Notify Retailer immediately in writing of any subpoena or other judicial or administrative order by a government authority or proceeding seeking access to or disclosure of Personal Data. Retailer shall have the right to defend such action in lieu of and on behalf of Spocket. Retailer may, if it so chooses, seek a protective order. Spocket shall reasonably cooperate with Retailer in such defense.
F. Provide reasonable assistance to Retailer, at Retailer’s cost, in complying withRetailer’s obligations under Applicable Law.
G. Maintain internal record(s) of Processing activities, copies of which shall be provided to Retailer by Spocket or to supervisory authorities upon request.
IV. Transfer of Personal Information to Suppliers
A. Retailer expressly acknowledges that Spocket will be transferring Personal Data toSuppliers on behalf of Retailer in the course of providing the Services. Suppliers are not sub-contractors or sub-processors of Spocket, and it is the responsibility ofRetailer to ensure that it has entered into a separate, adequate data processing agreement or addendum with such Supplier if so required by Applicable Law.
V. Sub Processing
A. Spocket shall not share, transfer, disclose, make available or otherwise provide access to any Personal Data to any sub-contractor or sub-processor, or contract any of its rights or obligations concerning Personal Data, unless Spocket has entered into a written agreement with each such third party that imposes obligations on the third party that are similar to those as those imposed on Spocket under thisAddendum and are otherwise in compliance with the requirements of ApplicableLaw. Spocket shall only retain third parties that are capable of putting in place appropriate protection of the privacy, confidentiality and security of the PersonalData in compliance with the requirements of Applicable Law.
VI. Compliance with Applicable Laws
A. Each party covenants and undertakes to the other that it shall comply with allApplicable Laws in the use of the Services.
B. Without limiting the above, Spocket is not responsible for determining the requirements of laws applicable to Retailer’s business or that Spocket's provision of the Services meet the requirements of such laws. As between the parties, Retailer is responsible for the lawfulness of the Processing of the Retailer Personal Data.Retailer will not use the Services in conjunction with Personal Data to the extent that doing so would violate applicable Data Protection Laws.
C. If a Data Subject brings a claim directly against Spocket for a violation of their DataSubject rights in breach of Applicable Laws and such claim does not arise from a breach by Spocket of the terms of this Agreement, Retailer will indemnify Spocket for any cost, charge, damages, expenses or loss arising from such a claim, to the extent that Spocket has notified Retailer about the claim and given Retailer the opportunity to cooperate with Spocket in the defense and settlement of the claim.
VII. Data Security
A. Spocket shall develop, maintain and implement a comprehensive written information security program that complies with Applicable Law and good industry practice. Spocket’s information security program shall include appropriate administrative, technical, physical, organisational and operational safeguards and other security measures designed to
(i) ensure the security and confidentiality of Personal Data;
(ii) protect against any anticipated threats or hazards to the security and integrity of Personal Data; and
(iii) protect against any Personal Data Breach, including, as appropriate:a. The encryption of the Personal Data;
b. The ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
c. The ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident; and. A process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures adopted pursuant to this provision for ensuring the security of the Processing.
B. Spocket shall supervise Spocket personnel to the extent required to maintain appropriate privacy, confidentiality and security of Personal Data. Spocket shall provide training, as appropriate, to all Spocket personnel who have access to Personal Data.
C. Promptly (and in any event within 90 days) following the expiration or earlier termination of the Master Agreement, Spocket shall return to Retailer or its designee, if so requested during such period, or if not so requested securely destroy or render unreadable or undecipherable, each and every original and copy in every media of all Personal Data in Spocket’s, its affiliates’ or their respective subcontractors’ possession, custody or control. In the event applicable law does not permit Spocket to comply with the delivery or destruction of the Personal Data, Spocket warrants that it shall ensure the confidentiality of the Personal Data and that it shall not use or disclose any Personal Data after termination of thisAddendum.
VIII. Data Breach Notification
A. Spocket shall promptly inform Retailer in writing of any Personal Data Breach of which Spocket becomes aware. The notification to Retailer shall include all available information regarding such Personal Data Breach, including information on:
a. The nature of the Personal Data Breach including where possible, the categories and approximate number of affected Data Subjects and the categories and approximate number of affected Personal Data records;
b. The likely consequences of the Personal Data Breach; and
c. The measures taken or proposed to be taken to address the Personal DataBreach, including, where appropriate, measures to mitigate its possible adverse effects.Spocket shall cooperate fully with Retailer in all reasonable and lawful efforts to prevent, mitigate or rectify such Breach. Spocket shall provide such assistance as required to enable Retailer to satisfy Retailer’s obligation to notify the relevant supervisory authority and Data Subjects of a personal data breach under Articles 33and 34 of the GDPR.
Spocket shall on written request (but not more than once per year, other than in the event of a breach) make available to Retailer all information necessary to demonstrate compliance with the obligations set forth in this Addendum and, at the Retailer’s expense, allow for and contribute to audits, including inspections, conducted by Retailer or another auditor mandated by Retailer. Upon prior written request by Retailer (provided that it shall be not more than once per year other than in the event of a breach), Spocket agrees to cooperate and, within reasonable time, provide Retailer with: (a) audit reports (if any) and all information necessary to demonstrate Spocket’s compliance with the obligations laid down in this Addendum; and (b) confirmation that no audit, if conducted, has revealed any material vulnerability in Spocket’s systems, or to the extent that any such vulnerability was detected, that Spocket has fully remedied such vulnerability.
X. Governing Law
This Addendum shall be governed by the laws of the jurisdiction specified in theAgreement.