This Data Protection Agreement (“DPA”), forms part of other written or electronic agreement by and between YUMMITCO LTD (“YUMMIT”) and the undersigned merchant or customer of YUMMIT (“Customer”) for certain services (collectively, the “Service”) provided by YUMMIT (the “Main Agreement”). All capitalized terms not defined herein shall have the meanings set forth in the Main Agreement. Each of Customer and YUMMIT may be referred to herein as a “party” and together as the “parties.”
In connection with the Service, the parties anticipate that YUMMIT may process outside of the European Economic Area (“EEA”) and United Kingdom, certain Personal Data in respect of which the Customer or any Affiliate of Customer may be a data controller or data processor, as applicable, under applicable EU Data Protection Laws.
The parties have agreed to enter into this DPA in order to ensure that adequate safeguards are put in place with respect to the protection of such Personal Data as required by EU Data Protection Laws.
How this DPA applies
This DPA is an addendum to and forms part of the Main Agreement. The Customer entity signing this DPA must be the same as the Customer entity party to the Main Agreement.
If the Customer entity signing this DPA is not a party to the Main Agreement directly with YUMMIT, but is instead a customer indirectly via an authorized reseller of YUMMIT services, this DPA is not valid and is not legally binding. Such entity should contact the authorized reseller to discuss whether any amendment to its agreement with that reseller may be required.
Data Processing Terms
In the course of providing the Service to Customer pursuant to the Main Agreement, YUMMIT may Process Personal Data on behalf of Customer. YUMMIT agrees to comply with the following provisions with respect to any Personal Data submitted by or for Customer to YUMMIT or collected and processed by or for Customer using YUMMIT’s Services.
The parties agree that the obligations under this DPA that are specific to the GDPR shall not apply until the GDPR has come into full force and effect.
1. The following definitions are used in this DPA:
a. “Adequate Country” means a country or territory that is recognized under EU Data Protection Laws as providing adequate protection for Personal Data;
b. “Affiliate” means, with respect to a party, any corporate entity that, directly or indirectly, Controls, is Controlled by, or is under Common Control with such party (but only for so long as such Control exists);
c. “EU Data Protection Laws” means all laws and regulations of the European Union, the European Economic Area, their member states, and the United Kingdom, applicable to the processing of Personal Data under the Main Agreement, including (where applicable) the GDPR;
d. “GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 May 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data);
e. “Personal Data” means all data which is defined as ‘personal data’ under EU Data Protection Laws and to which EU Data Protection Laws apply and which is provided by the Customer to YUMMIT, and accessed, stored or otherwise processed by YUMMIT as a data processor as part of its provision of the Service to Customer;
f. “Verified Technical Resource” means a category, in accordance with Article 13(1)(e) of the GDPR, of technical contractors verified by YUMMIT to be able to technically adhere to the security provisions of this DPA and the GDPR, have entered an agreement with YUMMIT at least as restrictive as this DPA; and may provide services to YUMMIT when requested.
g. “Processing”, “data controller”, “data subject”, “supervisory authority” and “data processor” shall have the meanings ascribed to them in EU Data Protection Laws.
2. An entity “Controls” another entity if it: (a) holds a majority of the voting rights in it; (b) is a member or shareholder of it and has the right to remove a majority of its board of directors or equivalent managing body; (c) is a member or shareholder of it and controls alone or pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or (d) has the right to exercise a dominant influence over it pursuant to its constitutional documents or pursuant to a contract; and two entities are treated as being in “Common Control” if either controls the other (directly or indirectly) or both are controlled (directly or indirectly) by the same entity.
2. Status of the parties
1. The type of Personal Data processed pursuant to this DPA and the subject matter, duration, nature and purpose of the processing, and the categories of data subjects, are as described in Annex 1.
2. Each party warrants in relation to Personal Data that it will comply (and will procure that any of its personnel comply and use commercially reasonable efforts to procure that its sub-processors comply), with EU Data Protection Laws. As between the parties, the Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which the Customer acquired Personal Data.
3. In respect of the parties' rights and obligations under this DPA regarding the Personal Data, the parties hereby acknowledge and agree that the Customer is the data controller or processor, and YUMMIT is the data processor or sub-processor, as applicable, and accordingly YUMMIT agrees that it shall process all Personal Data in accordance with its obligations pursuant to this DPA.
5. Each party shall appoint a Data Privacy Officer within its organization authorized to respond from time to time to enquiries regarding Personal Data, the parties shall make the Data Privacy Officer known to the other party, and the Data Privacy Officer shall deal with such enquiries promptly.
3. YUMMIT obligations
1. With respect to all Personal Data, YUMMIT warrants that it shall:
a. only process Personal Data in order to provide the Service, and shall act only in accordance with: (i) this DPA, (ii) the Customer's written instructions as set forth in the Main Agreement and this DPA, and (iii) as required by applicable laws;
b. upon becoming aware, inform the Customer if, in YUMMIT’s opinion, any instructions provided by the Customer under clause 3.1(a) are in conflict with the GDPR;
c. implement appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing of Personal Data, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data;
d. take reasonable steps to ensure that only authorized personnel have access to such Personal Data and that any persons whom it authorizes to have access to the Personal Data are under obligations of confidentiality;
e. without undue delay after becoming aware, notify the Customer of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed by YUMMIT, its sub-processors, or any other identified or unidentified third party (a “Security Breach”);
f. promptly provide the Customer with reasonable cooperation and assistance in respect of a Security Breach and all reasonable information in YUMMIT’s possession concerning such Security Breach insofar as it affects the Customer, including, to the extent then known, the following:
i. the possible cause and consequences for the Data Subjects of the Security Breach;
ii. the categories of Personal Data involved;
iii. a summary of the possible consequences for the relevant data subjects;
iiii. a summary of the unauthorised recipients of the Personal Data; and
v. the measures taken by YUMMIT to mitigate any damage;
g. not make any public announcement about a Security Breach (a “Breach Notice”) without the prior written consent of the Customer, unless required by applicable law;
h. promptly notify the Customer if it receives a request from a data subject of Customer to access, rectify or erase that individual’s Personal Data, or if a data subject objects to the processing of, or makes a data portability request in respect of, such Personal Data (each a “Data Subject Request”). YUMMIT shall not respond to a Data Subject Request without the Customer’s prior written consent except to confirm that such request relates to the Customer, to which the Customer hereby agrees. To the extent that the Customer does not have the ability to address a Data Subject Request, then upon Customer’s request YUMMIT shall provide reasonable assistance to the Customer to facilitate such Data Subject Request to the extent able and in line with applicable law. To the extent Customer does not respond, YUMMIT may respond to the Data Subject Request in any manner it deems appropriate. Customer shall cover all costs incurred by YUMMIT in connection with its provision of such assistance or response;
i. other than to the extent required to comply with applicable law, following termination or expiry of the Main Agreement or completion of the Service, YUMMIT will delete all Personal Data (including copies thereof) processed pursuant to this DPA;
j. taking into account the nature of processing and the information available to YUMMIT, provide such assistance to the Customer as the Customer reasonably requests in relation to YUMMIT’s obligations under EU Data Protection Laws with respect to:
i. data protection impact assessments (as such term is defined in the GDPR);
ii. notifications to the supervisory authority under EU Data Protection Laws and/or communications to data subjects by the Customer in response to any Security Breach; and
iii. the Customer’s compliance with its obligations under the GDPR with respect to the security of processing;
iiii. if the Customer shall cover all costs incurred by YUMMIT in connection with its provision of such assistance.
1. The Customer grants a general authorization: (a) to YUMMIT to appoint any Affiliate as sub-processors, and (b) to YUMMIT and any Affiliate to appoint any Verified Technical Resource to act as third party data center operators, and outsourced marketing, business, engineering and customer support providers as sub-processors to support the performance of the Service.
2. YUMMIT will only use a Verified Technical Resource as sub-processors of any Personal Data. If YUMMIT is reasonably able to provide the Service to the Customer in accordance with the Main Agreement without using the sub-processor and decides in its discretion to do so, then the Customer will have no further rights under this clause 4.2 in respect of the proposed use of the sub-processor. If YUMMIT requires use of a sub-processor in its discretion and Customer does not want YUMMIT to use a Verified Technical Resource as a sub-processor, Customer may provide written notification of any objections to YUMMIT. Within ninety (90) days from the Customer's notification of objections, the Customer may within thirty (30) days following the end of the ninety (90) day period referred to above, terminate the applicable Order Form without refund. If the Customer does not provide a timely objection to the use of a Verified Technical Resource in accordance with this clause 4.2, the Customer will be deemed to have consented to the use of any Verified Technical Resource as a sub-processor and waived its right to object. YUMMIT may use a new or replacement Verified Technical Resource as a sub-processor whilst the objection procedure in this clause 4.2 is in process.
3. YUMMIT will ensure that any sub-processor it engages to provide an aspect of the Service on its behalf in connection with this DPA does so only on the basis of a written contract which imposes on such sub-processor terms substantially no less protective of Personal Data than those imposed on YUMMIT in this DPA (the "Relevant Terms"). YUMMIT shall procure the performance by such sub-processor of the Relevant Terms and shall be liable to the Customer for any breach by such person of any of the Relevant Terms.
5. Audit and records
1. YUMMIT shall, in accordance with EU Data Protection Laws, make available to the Customer such information in YUMMIT’s possession or control as the Customer may reasonably request with a view to demonstrating YUMMIT’s compliance with the obligations of data processors under EU Data Protection Law in relation to its processing of Personal Data.
2. The Customer may exercise its right of audit under EU Data Protection Laws in relation to Personal Data, through YUMMIT providing:
a. an audit report not older than eighteen (18) months, prepared by an independent external auditor demonstrating that YUMMIT’s technical and organizational measures are sufficient and in accordance with an accepted industry audit standard;
b. additional information in YUMMIT’s possession or control to an EU supervisory authority when it requests or requires additional information in relation to the processing of Personal Data carried out by YUMMIT under this DPA; and
c. Customer shall cover all costs incurred by YUMMIT in connection with any such audit.
6. Data transfers
1. To the extent any processing of Personal Data by YUMMIT takes place in any country outside the EEA (except if in an Adequate Country), the parties agree that the standard contractual clauses approved by the EU authorities under EU Data Protection Laws will apply in respect of that processing, and YUMMIT will comply with the obligations of the ‘data importer’ in the standard contractual clauses and the Customer will comply with the obligations of the 'data exporter'.
2. The Customer acknowledges and accepts that the provision of the Service under the Main Agreement may require the processing of Personal Data by sub-processors in countries outside the EEA.
3. If, in the performance of this DPA, YUMMIT transfers any Personal Data to a Verified Technical Sub-processor located outside of the EEA (without prejudice to clause 4), YUMMIT shall in advance of any such transfer ensure that a legal mechanism to achieve adequacy in respect of that processing is in place, such as:
a. the requirement for YUMMIT to execute or procure that the Verified Technical Sub-processor execute to the benefit of the Customer standard contractual clauses approved by the EU authorities under EU Data Protection Laws;
b. the requirement for the Verified Technical Sub-processor to be certified under the EU-U.S. Privacy Shield Framework; or
c. the existence of any other specifically approved safeguard for data transfers (as recognized under EU Data Protection Laws) and/or a European Commission finding of adequacy.
4. The following terms shall apply to the standard contractual clauses:
a. The Customer may exercise its right of audit under clause 5.1(f) of the standard contractual clauses as set out in, and subject to the requirements of, clause 5.2 of this DPA; and
b. YUMMIT may appoint Verified Technical Sub-processors as set out, and subject to the requirements of, clauses 4 and 6.3 of this DPA.
1. This DPA is without prejudice to the rights and obligations of the parties under the Main Agreement, which shall continue to have full force and effect. In the event of any conflict between the terms of this DPA and the terms of the Main Agreement, the terms of this DPA shall prevail as far as the subject matter concerns the processing of Personal Data.
2. YUMMIT’s liability under or in connection with this DPA is subject to the limitations on liability contained in the Main Agreement.
3. This DPA does not confer any third-party beneficiary rights, it is intended for the benefit of the parties hereto and their respective permitted successors and assigns only, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
4. This DPA and any action related thereto shall be governed by and construed in accordance with the laws of the United Kingdom, without giving effect to any conflicts of laws principles. The parties consent to the personal jurisdiction of, and venue in, the courts of London.
5. This DPA is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matter. Other than in respect of statements made fraudulently, no other representations or terms shall apply or form part of this DPA. No modification of, amendment to, or waiver of any rights under the DPA will be effective unless in writing and signed by an authorized signatory of each party. This DPA may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. Each person signing below represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this DPA. Each party represents and warrants to the other that the execution and delivery of this DPA, and the performance of such party’s obligations hereunder, have been duly authorized and that this DPA is a valid and legally binding agreement on each such party, enforceable in accordance with its terms.
Details of the Personal Data and processing activities
a. The personal data comprises: in relation to Customer`s name, email, telephone number, registration address; in relation to visitors of the Customer's online properties identification data, connection data, or localization data (including IP addresses).
b. The duration of the processing will be: until the earliest of (i) expiry/termination of the Main Agreement, or (ii) the date upon which processing is no longer necessary for the purposes of either party performing its obligations under the Main Agreement (to the extent applicable).
c. The processing will comprise: Processing necessary to provide the Service to Customer, pursuant to the Main Agreement.
d. The purpose(s) of the processing is/ are: necessary for the provision of the Service.
e. Personal data may concern the following data subjects:
- • Prospective customers, customers, resellers, referrers, business partners, and vendors of the Customer (who are natural persons);
- • Employees or contact persons of the Customer’s prospective customers, customers, resellers, referrers, sub-processors, business partners, and vendors (who are natural persons);
- • Employees, agents, advisors, and freelancers of the Customer (who are natural persons); and/or
- • Natural persons authorized by the Customer to use the Service.