Data Processing Addendum
This Addendum (“Addendum”) supplements the Agreement (as defined below) when theGDPR applies to your use of the Solution to process customer data. This Addendum is an agreement between you or the entity you represent (“Client”, “you” or“your”) and the applicable Flow contracting party under the Agreement (“Flow”).
1. Definitions
1.1 Except as set forth below, capitalized terms defined in the Agreement shall be defined as set forth in theAgreement, and, unless the context otherwise requires, the following definitions shall apply:
“Agreement” means the ClientSubscription Order entered into by Flow Commerce Inc. (or a subsidiary thereof)and Client.
"Data" means the customer's“Personal Data” collected as a result of a customer ordering through the FlowSolution;
"DPLaws" means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) EU Regulation 2016/679 ("GDPR"); (ii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR (including, in the UK, the Data Protection Act 2018 ("DPA")and (to the extent in force) the UK GDPR as defined in The Data Protection,Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations2019 ("UK GDPR")); (iii) any laws and regulations implementing or made pursuant to EU Directive2002/58/EC (as amended by 2009/136/EC) (including, in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003); and (iv) any guidance or codes of practice issued by a governmental or regulatory body or authority in relation to compliance with the foregoing; in each case, as updated, amended or replaced from time to time.
"DPRegulator" means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the DP Laws.
"GDPR" means the EU General Data Protection Regulation2016/679.
"Clauses" means the standard contractual clauses set forth onSchedule 1, attached to and forming part of this Addendum pursuant to the European Commission Decision of 5 February 2010on standard contractual clauses for the Transfer of personal data to processors established in third countries under Directive 95/46/EC.
The terms "DataSubject", "PersonalData", "process","processing", "transfer" or “transferred”, “processor”,“controller” (in the context of transfers of Personal Data as further described in clause 5) and "technical and organisational measures" shall have the meanings and otherwise be interpreted in accordance with applicable DP Laws.
2. Applicability; Term of the Addendum
This Addendum applies when Data is processed by Flow. In this context, Flow will act as “processor” to Client will act as “controller” with respect to Data. This Addendum shall be deemed to commence on the later of September 11, 2020 and the date Flow andClient entered into the Agreement.
3. Details of Processing
Flow shall process the Data:
(a) to provide the Services to Client in the fashion described in the Agreement;
(b) to perform Flow’s obligations and exercise Flow’s rights under the Agreement; and
(where Client elects to receive such services as part of the Flow Solution) to Transfer Client EU Personal Data to providers of various services, including logistics, payment processing, and the FPS to enable them to provide such services to Client and their other customers and partners (in the fashion described in Flow’s posted at: https://www.flow.io/policies/privacy).
4. Subprocessing
4.1 Client authorises Flow to appoint in accordance with this clause 4.
4.2 Flow may continue to use those Subprocessors already engaged by Flow as at the date of this Data Processing Addendum, subject to Flow in each case as soon as reasonably practicable meeting the obligations set out inParagraph 5.4.
4.3 Flow may from time-to-time appoint new Subprocessors to Process Client EU Personal Data in their provision of the following elements of the Flow Offering:
(a) the hosting of the Flow Solution;
(b) the shipping, tracking and delivery of Customer Orders and Returns;
(c) the processing of payments and refunds for Customer Orders;
(d) tax and duty calculation associated with Customer Orders;
(e) the tracking of inventory associated with Customer Orders;
(f) localization of content;
(g) the analysis of data and insights that may be obtained from Customer Orders;
(h) other third parties that facilitate services provided by the Flow Solution or expansion of Flow’s product suite; and
(i) any other services provided by the Flow Solution or expansion of Flow’s product suite.
1.4 With respect to each Subprocessor, Flow shall:
(a) before the Subprocessor first Processes Client EU PersonalData (or, as soon as reasonably practicable, in accordance withParagraph 5.2),carry out adequate due diligence to ensure that the Subprocessor is capable of providingthe level of protection for Client EU Personal Data required by this DataProcessing Addendum; and
(b) ensure that the arrangement betweenFlow and the Subprocessor is governed by a written contract including terms which meet the requirements of Article 28(3) of the GDPR.
5. Compliance with DP Laws
1.1 The parties shall comply with their obligations under the DP Laws as they apply.
1.2 The parties shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the DP Laws, and shall make such information available to any DP Regulator on request.
5.3 Warranties
In processing the Data, the Flow warrants and represents:
(a) it has never received a request to access the Data from any law enforcement personnel;
(b) taking into account:
(i) the state of the art;
(ii) the nature, scope, context and purposes of the processing; and
(iii) the risk and severity of potential harm,
it shall protect the Data by ensuring that it has in place appropriate technical and organisational measures, including measures to protect the Data against the risks of a security breach; and
(c) the Flow shall inform the Client as soon as reasonably possible if it has actual knowledge that it is unlikely to be able to comply with the representations and warranties in this clause 3.3 or the Clauses as set out in schedule 1.
The Flow will as soon as reasonably possible inform the Client if it is in breach of the representations and warranties.
6. The Clauses
The Clauses will apply toData that is taken outside the EEA, either directly or via onward transfer where this flow of data is a transfer within the meaning of the GDPR. For the avoidance of doubt the Clauses will not apply to customer Data that is not transferred, either directly or via onward transfer, outside the EEA or theData a customer submits personally into the Flow Services because this is not a transfer as defined under the GDPR. In the event that a DP Regulator or court determines that the scenarios described above are a transfer within the meaning of GDPR, Client shall be the Data Exporter as a result of inducing the customer to initiate the transfer for purposes of the sale of goods. Any onwards transfer of Data from the Flow Solution by Client shall be deemed an onward transfer initiated by Client as Data Exporter. In the event Client is not established in any Member State, the Governing Law of the Clauses shall be Ireland.
7. Co-operation and assistance
7.1 The Client shall promptly co-operate with the Flow, and promptly provide such information and assistance as the Flow may reasonably require, to enable the Flow to:
(a) comply with the Flow's obligations under the DP Laws in respect of Data; and
(b) deal with and respond to all investigations and requests for information relating to the Data from any DPRegulator.
7.2 If the Client receives any complaint, notice or communication from a DP Regulator or other third party(excluding requests by data subjects as permitted under DP Laws) which relates directly or indirectly to Data or to either party's compliance with the DP Laws, it shall notify the Flow as soon as reasonably practicable.
8. General
8.1 Nothing in this Addendum reduces the Client's obligations under the Agreement, or permits Client to process Data in a manner which is prohibited by the Agreement.
8.2 With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, the provisions of this Addendum shall take priority.
Schedule 1
Standard Contractual Clauses
Standard Contractual Clauses(processors)
For the purposes of Article 26(2) ofDirective 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 “Client” in the Addendum
(the “data exporter”)
and
Flow Commerce Inc.
2 Hudson Place, 7th Floor, Hoboken,NJ 07030
(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.
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 24October 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 Appendix 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, Clause8(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 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 Clause8(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 theClauses, 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
(ii) 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 theClauses; 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;
* Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
(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 ofAppendix 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 Clause3 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 dataimporter 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 Clause11 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 datasubprocessor 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.
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.
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 fulfill 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 MemberState in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under theClauses 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.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
Data exporter
The data exporter is the entity identified as “Client” in the Addendum
Data importer
The data importer is Flow Commerce Inc., a provider of online services for e-commerce.
Subject matter and duration of the Processing of Client EU Personal Data
The subject matter and duration of the Processing of the Client EU Personal Data are set out in the Agreement and the Addendum.
The nature and purpose of the Processing of Client EU Personal Data
- To liaise with Client’s personnel in relating to the parties’ performance of the Agreement.
- As part of Flow’s provision of the Flow Solution, including:
o the hosting of the Flow Solution;
o the presentation to customers of geo-targeted checkout and/or payment pages or facilities;
o the shipping, tracking and delivery ofCustomer Orders and Returns;
o the processing of payments and refunds for Customer Orders;
o FPS
o tax and duty calculation associated with Customer Orders;
o the tracking of inventory associated with Customer Orders;
o the analysis for Client of data and insights that may be obtained from Customer Orders; and
o any other services provided by the FlowSolution or expansion of Flow’s product suite.
The types of Client EU Personal Data to be Processed
- The names, email addresses, postal addresses, other contact details and payment details of Client’s customers
- The names and email addresses, and other Personal Data, provided by Client’s Personnel to use access the Flow Solution (including any PersonalData comprised in the log-in details or other access protocols therefor).
- The names, email addresses and other contact details of Client’s Personnel with whom Flow needs to liaise in the provision of the Flow Offering.
- Certain technical information relating to Customers (including IP addresses, geo-location, cookie data (including opt-in/opt-out status and other session/tracking data).
The categories of Data Subject to whom the Client EU Personal Data relates
- (Only to the extent such individuals are based in the EU/EEA) Client’s Personnel
- Client’s customers who place Customer Orders via Flow.
The obligations and rights of Client
The obligations and rights of Client are set out in the Agreement and the Addendum.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and5(c) (or document/legislation attached):
The technical and organisational security measures implemented by the data importer are as described in the Addendum and the Agreement.
