DPA (GDPR)

Effective date: May 7th, 2021.

This Data Processing Agreement (“DPA”) is an addendum to the Customer Terms of Service (“Agreement”) between FingerprintJS Inc. (“FingerprintJS”) and the Customer. This DPA includes and incorporates by reference the annexes and addenda referenced at the bottom of this document. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Customer enters into this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the name and on behalf of its Authorized Affiliates (defined below).

The parties agree as follows:

1. Definitions

"Adequate Jurisdiction" means the European Economic Area, or a country which ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data, as: (i) determined by the European Commission with respect to Personal Data relating to data subjects in the European Economic Area; or (ii) set out in the UK Data Protection Act 2018 determined by the UK Secretary of State in accordance with regulations made under the UK Data Protection Act 2018 with respect to personal data relating to data subjects in the United Kingdom.

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.

“Authorized Affiliate” means any of Customer Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.

“Control” means either (i) an ownership, voting or similar interest representing twenty five (25%) or more of the total interests then outstanding of the entity in question; or (ii) the power to direct or cause the direction and management of an entity's policies in accordance with the acquirer's wishes, whether as a result of the ownership of shares, control of the board of directors, contract or any powers conferred by the entity's articles of association or other constitutional documents. The term “Controlled” shall be construed accordingly.

“Controller” has the meaning given to it in the GDPR.

"Controller Clauses" means the Standard Contractual Clauses (controllers) approved by European Commission decision C(2004) 4271 set out in STANDARD CONTRACTUAL CLAUSES (CONTROLLERS) to the DPA.

“Customer Data” means any data that FingerprintJS and/or its Affiliates processes on behalf of Customer in the course of providing the Services under the Agreement.

"Customer Personal Data" means any Personal Data contained within the Customer Data, as set out in Annex 1 of Standard Contractual Clauses (Processors);

“Data Protection Laws” means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.

“EU Data Protection Law” means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) and, where applicable, the "UK GDPR" as defined in The Data Protection, Privacy and Electronic Communications (Amendment Etc.) (EU Exit) Regulations 2019 (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).

“Personal Data” has the meaning given to it in the GDPR.

“Processor” has the meaning given to it in the GDPR.

"Processor Clauses" means the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593 set out in Standard Contractual Clauses (Processors) to this DPA.

“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly.

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.

“Services” means any product or service provided by FingerprintJS to Customer pursuant to and as more particularly described in the Agreement.

“Sub-processor” means any Processor engaged by FingerprintJS or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any FingerprintJS Affiliate.

2. Scope and Applicability of this DPA

2.1 This DPA applies where and only to the extent that FingerprintJS processes Customer Personal Data on behalf of the Customer in the course of providing the Services and such Customer Personal Data is subject to EU Data Protection Law or the Data Protection Laws of, Switzerland. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.

2.2 Role of the Parties. Save as set out in Section 2.5, the parties acknowledge that it is their intention that, as between FingerprintJS and Customer, Customer is the Controller of Customer Personal Data and FingerprintJS shall process Customer Personal Data only as a Processor on behalf of Customer.

2.3 Customer Obligations. Customer agrees that: (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Customer Personal Data; (ii) it shall ensure that any processing instructions it issues to FingerprintJS with respect to Customer Personal Data shall comply with applicable Data Protection Laws; and (iii) it has provided notice and, where applicable, has obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for FingerprintJS to process Customer Personal Data and provide the Services pursuant to the Agreement and this DPA.

2.4 Processing of Personal Data. As a Processor, FingerprintJS shall process Customer Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; and (ii) processing to perform any steps necessary for the performance of the Agreement, in each case unless processing is required by applicable law in the UK, Switzerland, the European Union or a Member State of the European Union, in each case to which FingerprintJS is subject, in which case FingerprintJS shall, to the extent permitted by such applicable law, inform the Customer of that legal requirement before processing that Customer Personal Data. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to FingerprintJS in relation to the processing of Customer Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and FingerprintJS.

2.5 Our Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that FingerprintJS shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered Personal Data, FingerprintJS is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.

3. Sub-processing

3.1 Authorized Sub-processors. Customer agrees that FingerprintJS may engage Sub-processors to process Customer Personal Data on Customer's behalf. The Sub-processors currently engaged by FingerprintJS and authorized by Customer are listed in List of Sub-processors.

3.2 Sub-processor Obligations. FingerprintJS shall: (i) enter into a written agreement with the Sub-processor imposing the same data protection obligations on the Sub-processor as set out in this DPA; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause FingerprintJS to breach any of its obligations under this DPA.

3.3 Changes to Sub-processors. FingerprintJS shall provide Customer reasonable advance notice (for which email shall suffice) if it adds or removes Sub-processors.

3.4 Objection to Sub-processors. Customer may object in writing to FingerprintJS's appointment of a new Sub-processor by: (i) notifying FingerprintJS of its objection promptly in writing within five (5) calendar days of receipt of FingerprintJS' notice in accordance with Section 3.3; and (ii) providing documentary evidence that reasonably shows that the Sub-processor does not or cannot comply with the requirements in this DPA. In such event, the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If this is not possible, either party may terminate the applicable Services that cannot be provided by FingerprintJS without the use of the objected-to-new Sub-processor.

4. Security

4.1 Security Measures. FingerprintJS Pro shall implement and maintain appropriate technical and organizational security measures to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data, in accordance with FingerprintJS' security standards described in Annex 2 to Standard Contractual Clauses (Processors) (“Security Measures”).

4.2 Confidentiality of Processing. FingerprintJS shall ensure that any person who is authorized by FingerprintJS to process Customer Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

4.3 Security Incident Response. Upon becoming aware of a Security Incident, FingerprintJS shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.

4.4 Updates to Security Measures. Customer acknowledges that the Security Measures are subject to technical progress and development and that FingerprintJS may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.

5. Security Reports and Audits

5.1 FingerprintJS shall provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires, that Customer (acting reasonably) considers necessary to confirm FingerprintJS's compliance with this DPA, provided that Customer shall not exercise this right more than once per year.

6. International Transfers

6.1 To the extent** that FingerprintJS acts as a Processor of Customer Personal Data, the Processor Clauses shall apply to the transfer of Customer Personal Data from Customer to FingerprintJS.

6.2 To the extent that FingerprintJS acts as a Controller of Customer Personal Data, the Controller Clauses shall apply to the transfer of Customer Personal Data from the Customer to FingerprintJS.

6.3 For the purposes of the Processor Clauses and Controller Clauses, any reference to a provision under Directive 95/46/EC shall be read as referring to the equivalent provision under the GDPR and any reference to "Member State" shall include all Member States of the European Economic Area, the United Kingdom and Switzerland.

6.4 In the event of any conflict between the Processor Clauses or the Controller Clauses and this remainder of this DPA, the provisions of the Processor Clauses or Controller Clauses (as applicable) shall prevail.

6.5 FingerprintJS shall promptly notify the Customer, unless prohibited under applicable law, if it:

  • (a) receives any legally binding request from a public authority in the United States for disclosure of any Customer Personal Data, and such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided;
  • (b) becomes aware of any direct access by public authorities in the United States to Customer Personal Data; such notification shall include all information available to FingerprintJS.

6.6 In the event that FingerprintJS receives a request from a public authority in the United States for disclosure of any Customer Personal Data, it shall:

  • (a) review, under applicable law, the legality of the request for disclosure, notably whether it remains within the powers granted to the requesting public authority, and to exhaust all available remedies to challenge the request if, after a careful assessment, it concludes that there are grounds under the laws of the country of destination to do so. When challenging a request, the data importer shall seek interim measures with a view to suspend the effects of the request until the court has decided on the merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules;
  • (b) document its legal assessment as well as any challenge to the request for disclosure and, to the extent permissible under applicable law, make it available to the Customer and the competent supervisory authority upon request;
  • (c) provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

6.7 If FingerprintJS is prohibited from notifying the Customer of a disclosure request received from a public authority, FingerprintJS agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicate as much information and as soon as possible. FingerprintJS agrees to document its best efforts in order to be able to demonstrate them upon request of the Customer.

6.8 To the extent permissible under applicable law, FingerprintJS agrees to provide the Customer with regular updates regarding requests received from a public authorities including details of:

  • (a) the number of requests received;
  • (b) the types of data requested;
  • (c) the requesting authority;
  • (d) whether the requests have been challenged and the outcome of such challenges.

6.9 FingerprintJS shall preserve the information set out in clauses 6.5, 6.6 and 6.7 for the duration of the Agreement and, to the extent permitted under applicable law, make it available to the competent supervisory authority upon request.

6.10 FingerprintJS shall not transfer any Customer Personal Data to a recipient in a country or territory other than an Adequate Jurisdiction unless:

  • (a) the transfer is governed by the Standard Contractual Clauses (processors) approved by the European Commission Decision C(2010)593 or any subsequent version thereof released by the European Commission; or
  • (b) the transfer is otherwise lawful under the GDPR.

7. Return or Deletion of Data

7.1 Upon deactivation of the Services, FingerprintJS shall, subject to Section 7.2: (i) if requested to do so by the Customer within seven (7) days of the date of termination of the Agreement or deactivation of the Services, return a complete copy of all Customer Personal Data by secure file transfer in such a format as notified by the Customer to FingerprintJS; and (ii) delete and use all reasonable efforts to procure the deletion of all other copies of Customer Personal Data processed by FingerprintJS or any Sub-processors.

7.2 FingerprintJS may retain Customer Personal Data: (i) to the extent required by applicable laws, and only for such period and such purposes as required by applicable laws; or (ii) to the extent that the Customer Personal Data has been archived on back-up systems, provided that FingerprintJS shall securely isolate and protect such Customer Personal Data from any further processing, except to the extent required by applicable law, and purge such Customer Personal Data from the applicable back-up systems in accordance with its normal back-up cycle.

7.3 FingerprintJS shall, with respect to any Customer Personal Data retained in accordance with Section 7.2, ensure the confidentiality of all such Customer Personal Data.

8. Cooperation

8.1 To the extent that Customer is unable to independently access the relevant Customer Personal Data within the Services, FingerprintJS shall (at Customer's expense) taking into account the nature of the processing, provide reasonable cooperation to assist Customer by appropriate technical and organizational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Customer Personal Data under the Agreement. In the event that any such request is made directly to FingerprintJS , FingerprintJS shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If FingerprintJS is required to respond to such a request, FingerprintJS shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.

8.2 To the extent FingerprintJS is required under Data Protection Law, FingerprintJS shall (at Customer's expense) provide reasonably requested information regarding FingerprintJS processing of Customer Personal Data under the Agreement to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.

9. Miscellaneous

9.1 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

9.2 This DPA is a part of and incorporated into the Agreement so references to "Agreement" in the Agreement shall include this DPA.

9.3 In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.

9.4 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.

FingerprintJS Inc.
Name: Valentin Vasilyev
Title: Chief Technology Officer

SCHEDULE 1

STANDARD CONTRACTUAL CLAUSES (CONTROLLERS)

For the purposes of these Standard Contractual Clauses for the transfer of personal data from the Community to third party countries (controller to controller transfers), the "data exporter" and the "data importer" shall be to the Customer and FingerprintJS respectively (each a "party" and, together, the "parties")

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/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);

(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.

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 III, 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.

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 I(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 III (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 processing principles set forth in Annex A.

(i) 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

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

  • (ii) 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

  • (iii) 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

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

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 I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII 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).

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 II(h), which shall apply only if so selected by the data importer under that 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.

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 VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.

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.

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 I(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.

Annex A

Data Processing Principles

  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 (e.g. 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.

Annex B

Details of the transfer forming part of the controller to controller clauses

Data Subjects

  • The Customer's employees and contractors that the Customer authorises to access and use the Services.

Purposes of the transfer(s)

The transfer is made for the following purposes:

  • billing, account management, technical support, product development and sales and marketing

Categories of data

  • Contact information, payment and transaction information, comments and opinions, technical information regarding access to the Services (including IP address, approximate location, pages viewed and log data)

Recipients

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

  • Sub-processors listed in List of Sub-processors
  • Wildbit, LLC (d/b/a "Postmark")
  • APIHub, Inc. (d/b/a "Clearbit")

Sensitive data

• None.

Data protection registration information of data exporter

• n/a

Additional useful information

n/a

Contact points for data protection enquiries

• Data exporter: the contact details provided with the Account

• Data importer: [email protected]

SCHEDULE 2

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of this Schedule 2, references to the "data exporter" and "data importer" shall be to the Customer and to FingerprintJS respectively (each a "party"; together "the parties").

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;

(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 subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor 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 Annex 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 subprocessor 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 subprocessor 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 Annex 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 subprocessor 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 Annex 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing 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 subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor 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

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 Annex 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 subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Annex 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 subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor 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 subprocessor 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 subprocessor 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 subprocessor of its obligations in order to avoid its own liabilities.

  1. 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 subprocessor 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor 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 subprocessor 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.

  1. 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 subprocessor, 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 subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, 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.

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

Subprocessing

  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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor 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 subprocessor's obligations under such agreement.

  2. The prior written contract between the data importer and the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.

  3. The provisions relating to data protection aspects for subprocessing 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.

  4. The data exporter shall keep a list of subprocessing 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 subprocessor 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 subprocessor 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.

Annex 1

Details of the transfer forming part of the Standard Contractual Clauses

Data exporter

The data exporter is the Customer

Data importer

The data importer is FingerprintJS

Data subjects

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

Users of Customer websites

Categories of Data

The personal data transferred concern the following categories of data:

Personal data contained within Visitor Data (as defined in the Agreement), including information relating to a user's device, operating system, browser, browser configuration, IP address, and approximate location.

Processing operations

The personal data transferred will be subject to the following basic processing activities:

Transmitting, collecting, storing and analysing data in order to provide the Services to the Customer, and any other activities related to the provision of the Services or specified in the Agreement.

Annex 2

Technical and Organisational Security Measures

  1. Introduction

The data importer employs a combination of technical controls to protect the personal data it processes from accidental loss and unauthorised access, disclosure and destructions.

  1. Access control

The data importer uses AWS IAM to implement access controls designed to maintain the confidentiality of data and to prevent unauthorised access to IT systems that store or access personal data. Such controls include the creation and management of appropriate permission-based access to resources where personal data are stored and processed.

  1. Encryption

The data importer uses reasonable practices to encrypt personal data, whether in transit or at rest, including:

  • (a) use of HTTPS for all APIs;
  • (b) use of keys, managed by AWS, for storage security and encryption at rest.
  1. Service providers

The data importer has written contracts in place with service providers which require them to implement appropriate security measures to protect the personal data to which they have access and to limit the use of personal data in accordance with the data importer's instructions.

LIST OF SUB-PROCESSORS

  1. Available upon request

Updated about a month ago



DPA (GDPR)


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