Last updated: November 25th, 2020
This Data Processing Addendum ("DPA") supplements the Customer Agreement or other relevant agreement which may have been entered into between the Accelize and Customer. This DPA sets out data protection, security, and confidentiality requirements with regard to the Processing of Personal Data (as each is defined below) that may be collected, disclosed, stored, accessed, or otherwise processed by Accelize for the purpose of providing the Services as set forth in the Agreement. This DPA is effective as of the date set forth above and replaces and supersedes any previously agreed data processing addendum between Customer and Accelize related to the materials as set forth herein.
Accelize reserves the right to make changes to this DPA at any time and for any reason. Accelize will alert users to any changes by updating the "Last Updated" date of this Policy. Any changes or modifications will be effective immediately upon posting the updated Addendum on the Accelize Sites, and Customer waives the right to receive specific notice of each such modification. Customer will be deemed to have accepted the changes in any revised Addendum by continued use of the Accelize Sites after the date such revisions are posted.
All terms used in this DPA shall have the meaning specified in the Agreement unless otherwise defined herein. For the purposes of this DPA, the following terms are defined as follows:
4.1 Accelize as a Data Processor. Accelize provides marketplace services enabling independent software vendors to sell products through online platforms. Under the terms of the Agreement, Accelize shall provide marketplace services include runtime DRM, entitlements management, billing and invoicing, online payments, and usage monitoring to Customer. The Parties acknowledge and agree that to the extent Accelize provides marketplace services, Accelize is acting as Data Processor on the Customer's behalf, and Customer acts as Data Controller. Accelize will engage Sub-Processors pursuant to the requirements set forth in Section 6 ("Sub-Processors").
4.2 Processing of Personal Data. Through its use of the Services, Customer shall Process Personal Data in accordance with the requirements of Applicable Law and provide Instructions to Accelize that are lawful and in conformance with all applicable regulations. Customer shall ensure that Data Subjects are provided with appropriate information regarding the Processing of Personal Data and, where required by Applicable Law, shall obtain consent to such Processing.
4.3 Accelize's Processing of Personal Data. To the extent that Accelize is acting as a Data Processor, Accelize will: (a) Process Personal Data in accordance with the Instructions of the Data Controller and this DPA, (b) ensure that any person authorized by Accelize to Process Personal Data has agreed to safeguard the confidentiality of the Personal Data, (c) provide reasonable assistance to the Data Controller, at the expense of the Data Controller, in ensuring compliance with the obligations of the Data Controller under Applicable Laws, taking into account the nature of the Processing and the information available to the Data Processor, (d) contribute to audits or inspections conducted by Accelize's authorized auditors by making available to the Data Controller upon reasonable request the respective audit reports (no more frequently than one (1) time per twelve (12) month period) provided that the Data Controller enters into a non-disclosure agreement with Accelize regarding such audit reports, and (e) provide reasonable assistance to the Data Controller, upon request and at the expense of the Data Controller, facilitate the Data Controller's compliance with its obligations in respect of conducting data protection impact assessments and consulting with a supervisory authority, as may be required by Applicable Law.
4.4 Details of the Processing. The subject-matter of Processing of Personal Data by Accelize is the performance of the Services pursuant to the Accelize Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data, and categories of Data Subjects Processed under this DPA are further specified in Schedule A to this DPA.
5.1 Data Subject Requests. Accelize will, to the extent permitted by Applicable Law or other applicable legal or regulatory requirements, inform Customer of any formal requests from Data Subjects exercising their rights of access, correction or erasure of their Personal Data, their right to restrict or to object to the Processing, as well as their right to data portability, and will not to respond to such requests unless instructed by Customer in writing to do so.
5.2 Assistance by Accelize. Accelize shall, upon Customer's request, provide reasonable efforts to assist Customer in responding to such Data Subject requests, and to the extent legally permitted, Customer shall be responsible for any costs arising from Accelize's provision of such assistance.
6.1 Appointment of Sub-Processors. Customer acknowledges and agrees that (a) Accelize Affiliates may be retained as Sub-Processors, and (b) Accelize and Accelize Affiliates may engage third-party Sub-Processors in connection with the provision of the Services. Accelize or an Accelize affiliate will enter into a written agreement with the Sub-Processor imposing on the Sub-Processor data protection obligations comparable to those imposed on Accelize under this DPA with respect to the protection of Personal Data. In case the Sub-Processor fails to fulfill its data protection obligations under such written agreement with Accelize, Accelize will remain liable to Customer for the performance of the Sub-Processor's obligations under such agreement, except as otherwise set forth in this DPA or in the Agreement. By way of this DPA, the Data Controller provides general written authorization to Accelize as Data Processor to engage Sub-Processors as necessary to perform the Services.
6.2 List of Current Sub-Processors. Accelize shall make available upon request by Customer a list of Sub-Processors for the Services. Accelize may update the list of Sub-Processors at any time to reflect any addition, replacement, or other changes to Accelize's Sub-Processors.
6.3 Objection Right for New Sub-Processors. Customer may reasonably object to Accelize's use of a new Sub-Processor on legitimate grounds, subject to the termination and liability clauses of the Agreement. The Data Controller acknowledges that these Sub-Processors are essential to providing the Services and that objecting to the use of a Sub-Processor may prevent Accelize from offering certain Services to the Data Controller.
7.1 Controls for the Protection of Personal Data. Each party shall implement and maintain appropriate technical and organizational measures for protection of the security, confidentiality, and integrity of Personal Data, including, where appropriate, the (a) Pseudonymization and encryption of Personal Data, (b) ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services involved in the processing of Personal Data, (c) ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident, and (d) process for regular testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of Personal Data.
7.2 Personal Data Incident Management and Notification. Accelize will implement and maintain a data security incident management program compliant with Applicable Law that addresses management of data security incidents including a loss, theft, misuse, unauthorized access, disclosure, or acquisition, destruction, or other compromise of Personal Data ("Incident"). Except to the extent necessary to comply with applicable legal regulatory or law enforcement requirements, Accelize will inform Customer without unreasonable delay in accordance with Applicable Law after it becomes aware of any Incident that has occurred in its systems which affects Personal Data which Accelize processes on Customer's behalf.
7.3 Return and Deletion of Customer Data. Accelize will delete or return all Personal Data to the Data Controller at the end of the provision of the Services or delete existing copies, unless further storage of the Personal Data is required or authorized by Applicable Law.
8.1 Data Transfer Mechanism. The parties agree that Accelize may transfer Personal Data processed under this DPA outside the United States, the European Economic Area, or Switzerland, as may be necessary to provide the Services. If Accelize transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Accelize will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Applicable Law. The Standard Contractual Clauses, as set forth in Schedule B, are incorporated by reference into this Agreement and shall apply to any applicable transfer.
9.1 The Parties acknowledge and agree that to the extent Accelize processes Personal Data involved in software enablement of payment transactions, Accelize shall make reasonable efforts to (1) monitor, detect, and prevent fraudulent payment transactions, (2) prevent harm to Customer, Accelize, Accelize Affiliates, and third parties related to the processing of payment transactions, (3) comply with legal or regulatory obligations applicable to the processing and retention of payment data to which Accelize is subject, including applicable anti-money laundering screening and compliance with know-your-customer obligations, (4) analyze, develop, and improve Accelize's Services, and (5) provide the Services to Customer, Accelize is acting as a Data Controller with respect to the Processing of Personal Data it receives from or through Customer.
9.2 If and as necessary and relevant, Accelize SAS is a private company incorporated in France and registered with the French Data Protection Commissioner's Office, and is a subsidiary of Accelize and recognized as an Affiliate under the terms of the Agreement.
This DPA will have the same duration as and will be subject to the termination terms as the Agreement. The obligations of Accelize to implement appropriate security measures with respect to Personal Data will survive the termination of this DPA and will apply for so long as Accelize retains Personal Data. In the event of a conflict between this DPA and the Agreement, the Agreement shall control.
Each Party's (and its respective Affiliates) liability, in the aggregate, arising out of or related to this DPA, whether in contract, tort, or under any other theory of liability, is subject to the terms of the Agreement, and any reference therein to liability of a Party shall mean the aggregate liability of that Party and all of its Affiliates under the Agreement and all DPAs together.
Subject Matter: Accelize's provision of the Services to Customer pursuant to the Agreement.
Duration of Processing: For the duration of the term of the Agreement, plus the period from the expiration of the Agreement while Personal Data is retained.
Data Subjects: Users of the Accelize sites or which utilize Services offered to Customer by Accelize.
Data Processing Activities: Providing marketplace services on behalf of Accelize users.
Categories of Personal Data: Personal data necessary to manage the marketplace platform, provide runtime DRM services, manage entitlements, handle billing and invoicing, process online payments, and monitor usage, including but not limited to:
Accelize does not knowingly process Sensitive Data in the context of the processing activities described in this Schedule.
These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law (otherwise).
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:
the entity identified as "Customer" in the DPA (the "data exporter"),
Accelize Inc., with its address at 2570 N 1st Street, Suite 218, San Jose, CA 95131, United States of America (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.
These Standard Contractual Clauses are incorporated into the Marketplace Seller Agreement as part of the DPA. Some terms used in these Standard Contractual Clauses are defined in the Seller Marketplace Agreement.
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 except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of "personal data" is expanded to include those 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 or jurisdiction 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.
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.
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.
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.
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 or jurisdiction 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 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 Appendix 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).
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 subprocessing, 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 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.
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.
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 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.
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 or jurisdiction 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.
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).
The Clauses shall be governed by the law of the Member State or jurisdiction in which the data exporter is established.
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.
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 or jurisdiction 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.
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.
The entity identified as "Customer" in the DPA.
Accelzie, Inc., a provider of marketplace services.
Defined in Schedule A of the DPA.
Categories of Data:
Defined in Schedule A of the DPA.
The processing activities are defined in Schedule A of the DPA.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
The data importer currently abides by the security standards in Section 7 ("Security") of the Data Processing Agreement. The data importer may update or modify these security standards from time to time provided such updates and modifications will not result in a degradation of the overall security of the Services during the term of the Marketplace Seller Agreement.