Exhibit B - DATA PROTECTION ADDENDUM
1. Introduction
This Data Protection Addendum (“Addendum”) is part of the Agreement between BrandOps and Customer and applies to the BrandOps Processing of Customer Personal Data under the Agreement.
2. Definitions.
For purposes of this Addendum, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this Addendum have the meanings given in the Agreement.
3. Termination
4. Scope of this Addendum
This Addendum applies to BrandOps’ Processing of Customer Personal Data under the Agreement, except that Annex A (EU Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by EU Data Protection Law and Annex B (California Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by the CCPA.
5. Role and Scope of the Processing
BrandOps will Process Customer Data only in accordance with Customer’s instructions. By entering into the Agreement, Customer instructs BrandOps to Process Customer Data to provide the Services and pursuant to any other written instructions given by Customer and acknowledged in writing by BrandOps as constituting instructions for purposes of this Addendum. Customer acknowledges and agrees that such instruction authorizes BrandOps to Process Customer Data (a) to perform its obligations and exercise its rights under the Agreement; and (b) to perform its legal obligations and to establish, exercise or defend legal claims in respect of the Agreement.
6. Subprocessing
(i) shall enter into a written agreement with each Subprocessor, imposing data protection obligations substantially similar to those set out in this Addendum; and
(ii) remains liable for compliance with the obligations of this Addendum and for any acts or omissions of the Subprocessor that cause BrandOps to breach any of its obligations under this Addendum.
7. Security
1. BrandOps shall implement and maintain technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data, in accordance with BrandOps’ security standards referenced in the Agreement (“Security Measures”).
2. Customer is responsible for reviewing the information made available by BrandOps relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease BrandOps’ obligations as compared to those reflected in such terms as of the Effective Date).
3. Upon becoming aware of a confirmed Security Incident, BrandOps shall notify Customer without undue delay unless prohibited by applicable law. A delay in giving such notice requested by law enforcement and/or in light of BrandOps’ legitimate needs to investigate or remediate the matter before providing notice shall not constitute an undue delay. Such notices will describe, to the extent possible, details of the Security Incident, including steps taken to mitigate the potential risks and steps BrandOps recommends Customer take to address the Security Incident. Without prejudice to BrandOps’ obligations under this Section 7.c. Customer is solely responsible for complying with Security Incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Security Incidents. BrandOps’ notification of or response to a Security Incident under this Section 7.c. will not be construed as an acknowledgement by BrandOps of any fault or liability with respect to the Security Incident.
4. Customer agrees that, without limitation of BrandOps’ obligations under this Section 7, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that it uses with the Services; and (d) maintaining its own backups of Customer Data.
8. Data Subject Requests
BrandOps shall upon Customer’s request (and at Customer’s expense) provide Customer with such assistance as it may reasonably require to comply with its obligations under Data Protection Laws to respond to requests from individuals to exercise their rights under Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in cases where Customer cannot reasonably fulfill such requests independently by using the self-service functionality of the Services. If BrandOps receives a request from a Data Subject in relation to their Customer Personal Data, BrandOps will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to any such request.
9. Return or Deletion of Data
– After termination of subscription services, Customer Data submitted to BrandOps is retained in inactive status for 120 days, after which it is deleted from production within 90 days and from backups within 180 days.
Annex A – EU Annex
1. Definitions; Processing of Data
3. Roles and Regulatory Compliance; Authorization. The parties acknowledge and agree that (a) BrandOps is a processor of the Customer Personal Data under EU Data Protection Law; (b) Customer is a controller of the Customer Personal Data under EU Data Protection Law; and (c) each party will comply with the obligations applicable to it in such role under EU Data Protection Law with respect to the Processing of Customer Personal Data. To the extent that any Usage Data (as defined in the Agreement) is considered Personal Data, BrandOps is the controller with respect to such data and shall Process such data in accordance with its Privacy Policy, which can be found at www.brandops.io/legal-privacy
4. BrandOps’ Compliance with Instructions. BrandOps will only Process Customer Personal Data in accordance with Customer’s instructions in this Addendum unless EU Data Protection Law requires otherwise, in which case BrandOps will notify Customer (unless that law prohibits BrandOps from doing so).
2. Data Security
1. BrandOps Security Measures, Controls and Assistance
(i) BrandOps will (taking into account the nature of the Processing of Customer Personal Data and the information available to BrandOps) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under EU Data Protection Law, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 7 of this Addendum; and (c) complying with this Annex A.
(ii) BrandOps will grant access to Customer Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality obligations. Should an employee of a Customer seek to exercise their rights under EU Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in respect of any Usage Data that constitutes Personal Data then the Customer undertakes to inform BrandOps without delay and instruct their employee to contact BrandOps directly via info@brandops.io or such other email address as directed at the time.
3. Audits and Reviews of Compliance.
To the extent applicable Data Protection Laws include a right for Customer to audit BrandOps’ Processing of Customer Personal Data, Customer will exercise such audit right, and BrandOps will fulfill its corresponding obligations, as follows:
(i) BrandOps shall make available to Customer relevant information regarding BrandOps’ Processing of Customer Personal Data under this Addendum in the form of BrandOps’ most recent ISO 27001, ISO 27017 or ISO 27018 certifications or similar audit reports (“Third Party Reports”)
(ii) Not more than once per calendar year and at Customer’s expense, Customer may audit BrandOps’ Processing of Customer Personal Data for compliance with its obligations under this Addendum by submitting reasonable requests for information, including security and audit questionnaires. BrandOps will provide written responses to the extent the requested information is necessary to confirm BrandOps’ compliance with this Addendum. However, if the requested information is addressed in a Third Party Report issued within the 12-month period prior to Customer’s request and BrandOps confirms there have been no material changes in the interim relevant to Customer’s request, Customer agrees to accept such Third Party Report in lieu of a written response. Any information provided by BrandOps under this Section 2.b. constitutes BrandOps’ Confidential Information under the Agreement.
(iii) If a third party is to conduct an audit under this Section 2.b., BrandOps may object to the auditor if the auditor is, in BrandOps’ reasonable opinion, not independent, a competitor of BrandOps or otherwise unqualified. Such objection by BrandOps will require Customer to appoint another auditor or conduct the audit itself.
(iv) Customer will promptly notify BrandOps of any non-compliance discovered during the course of an audit and provide BrandOps any audit reports generated in connection with any audit under this Section 2.b., unless prohibited by EU Data Protection Law or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and confirming that BrandOps’ Processing of Customer Personal Data complies with this Addendum.
(v) Customer shall reimburse BrandOps for any time expended by BrandOps or its Subprocessors in connection with any audits under this Section 2.b. at BrandOps’ then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Nothing in this Addendum shall be construed to require BrandOps to furnish more information about its Third Party Subprocessors in connection with such audits than such Third Party Subprocessors make generally available to their customers. Nothing in this Section 2.b. shall require BrandOps to breach any duties of confidentiality.
4. Impact Assessments and Consultations
BrandOps may (taking into account the nature of the Processing and the information available to BrandOps) reasonably assist Customer in complying with Customer’s obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of BrandOps’ information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement, including this Addendum.
5. Data Transfers
(i) for purposes of the Standard Contractual Clauses,
(a) Customer will act as the data exporter and
(b) BrandOps will act as the data importer;
(ii) for purposes of Appendix 1 to the Standard Contractual Clauses, the Data Subjects, categories of data, and the processing operations shall be as set out in Section 1.b. to this Annex A;
(iii) for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;
(iv) upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and data importer may remove or redact all commercial information or clauses unrelated to the Standard Contractual Clauses or their equivalent beforehand;
(v) the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2.b. of this Annex A;
(vi) Customer’s authorizations in Section 6 of this Addendum (Subprocessing) will constitute Customer’s prior written consent to the subcontracting by BrandOps of the Processing of Customer Personal Data if such consent is required under Clause 5(h) of the Standard Contractual Clauses;
(vii) certification of deletion of Customer Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request; and
(viii) the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under Chapter V of the GDPR in the absence of such Standard Contractual Clauses on any other basis.
Annex B – California Annex