Nativo: Advertiser Data Protection Addendum

This Data Protection Addendum is entered into by and between: (1) Nativo, Inc., of 100 N. Sepulveda Blvd, 10th Floor, El Segundo, CA 90245 (“Nativo”); and (2) Advertiser (as defined below), as of the Addendum Effective Date.

1.              INTERPRETATION

1.1           In this Data Protection Addendum the following terms shall have the meanings set out in this Paragraph 1, unless expressly stated otherwise:

(a)        “Ad” means advertising or other content delivered by Nativo to inventory in Publisher Properties on Advertiser’s behalf.

(b)        “Addendum Effective Date”: means the effective date of the Insertion Order.

(c)        “Adequate Country”: means a country or territory outside the EU/EEA that is recognised for the purposes of Data Protection Laws (including by virtue of a decision of the European Commission) as providing an adequate level of protection for Personal Data.

(d)        “Advertiser” means the entity identified as Advertiser on the Insertion Order.

(e)        “Advertiser Personal Data”: means any Personal Data, other than Jointly-controlled Personal Data, that Advertiser provides to Nativo or that Nativo collects pursuant to Advertiser instructions for Nativo to Process on Advertiser’s behalf in connection with the Insertion Order. 

(f)          “Anonymised Data": means any Personal Data (including Advertiser Personal Data), which has been anonymised such that the Data Subject to whom it relates cannot be identified, directly or indirectly, by Nativo or any other party reasonably likely to receive or access that Personal Data.

(g)        “Business Day”: means any day which is not a Saturday, Sunday or public holiday in the United Kingdom and on which the banks are open for business in London.

(h)        “Cessation Date”: has the meaning given in Paragraph 9.1.

(i)          “Data Protection Laws”: means until 24 May 2018, EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and, with effect from 25 May 2018, the GDPR.

(j)          “Data Subject Request”: means the exercise by Data Subjects of their rights under, and in accordance with, Chapter III of the GDPR.

(k)        “Data Subject” means the identified or identifiable natural person located in the EU/EEA to whom either Advertiser Personal Data or Jointly‑controlled Personal Data (as context requires) relates.

(l)          “Delete”: means to remove or obliterate Personal Data such that it is put beyond effective use, and “Deletion” shall be construed accordingly.

(m)       “ePrivacy Regulations”: means Directive 2002/58/EC, and any legislation implementing that Directive into domestic legislation of each Member State (together with any successor or replacement legislation thereto or therefor).

(n)        “GDPR”: means the EU General Data Protection Regulation 2016/679 and to the extent the GDPR is no longer applicable in the United Kingdom, any implementing legislation or legislation having equivalent effect in the United Kingdom.  References to “Articles” or “Chapters” of the GDPR shall be construed accordingly.

(o)        “Insertion Order” means the insertion order in which this Data Protection Addendum is referenced.

(p)        “Jointly-controlled Personal Data”: means any Personal Data collected or inferred by Nativo from or about end users of Publisher Properties, which Personal Data Nativo uses in its provision of services to Advertiser and its other customers.

(q)        “Personnel” means a person’s employees, agents, consultants or contractors.

(r)         “Privacy Policy”: means Nativo’s Interest Based Ads Privacy Policy (currently located at https://www.nativo.com/interest-based-ads), as may be updated from time to time.

(s)        “Publisher Properties”: means those websites (including those that are viewed on a tablet or smart device) and/or mobile applications on which Nativo has a contractual right to serve Ads.

(t)         “Services”: means those services and activities to be supplied to, or carried out by or on behalf of Nativo for, Advertiser pursuant to the Insertion Order.

(u)        “Standard Contractual Clauses”: means the standard contractual clauses issued by the European Commission for the transfer of Personal Data from Data Controllers established in the EU/EEA to Data Processors established in Third Countries.

(v)        “Subprocessor”: means any third party appointed by or on behalf of Nativo to Process Advertiser Personal Data.

(w)       “Third Country”: means a country or territory outside the EU/EEA that is not an Adequate Country.

(x)        “Transfer”: means the transfer of either Advertiser Personal Data or Jointly‑controlled Personal Data (as applicable) to a Third Country.

1.2           In this Data Protection Addendum:

(a)        the terms “Consent”, “Data Controller”, “Data Processor”, “Member State”, “Personal Data”, “Personal Data Breach”, “Process/Processing” and “Supervisory Authority” shall have the meaning ascribed to the corresponding terms in the Data Protection Laws;

(b)        unless otherwise defined in this Data Protection Addendum, all capitalised terms shall have the meaning given to them in the Insertion Order; and

(c)        any reference to any statute, regulation or other legislation in this Data Protection Addendum shall be construed as meaning such statute, regulation or other legislation itself, together with any applicable judicial or administrative interpretation thereof (including any binding guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority).

 

Part One: Advertiser Personal Data

2.              PROCESSING OF ADVERTISER PERSONAL DATA

2.1           In respect of Advertiser Personal Data, the Parties acknowledge that:

(a)        Nativo acts as a Data Processor; and

(b)        Advertiser acts as the Data Controller.

2.2           Nativo shall:

(a)        comply with all applicable Data Protection Laws in Processing Advertiser Personal Data; and

(b)        not Process Advertiser Personal Data other than:

(i)          on Advertiser’s instructions (subject always to Paragraph 2.8); and

(ii)         as required by applicable laws.

2.3           To the extent permitted by applicable laws, Nativo shall inform Advertiser of:

(a)        any Processing to be carried out under Paragraph 2.2(b)(ii); and

(b)        the relevant legal requirements that require it to carry out such Processing,

before the relevant Processing of that Advertiser Personal Data by Nativo.

2.4           Advertiser instructs Nativo to Process Advertiser Personal Data as necessary:

(a)        to provide the Services to Advertiser; and

(b)        to perform Nativo’s obligations and exercise Nativo’s rights under the Insertion Order.

2.5           Annex One to this Data Protection Addendum sets out certain information regarding Nativo’s Processing of Advertiser Personal Data as required by Article 28(3) of the GDPR.

2.6           Advertiser may amend Annex One to this Data Protection Addendum on written notice to Nativo from time to time as Advertiser                   reasonably considers necessary to meet any applicable requirements of Data Protection Laws. Nothing in Annex One to this Data Protection Addendum (including as amended pursuant to this Paragraph 2.6) confers any right or imposes any obligation on any Party to this Data Protection Addendum.

2.7           Where Nativo receives an instruction from Advertiser that, in its reasonable opinion, infringes the GDPR, Nativo shall inform Advertiser.

2.8           Advertiser acknowledges and agrees that any instructions issued by Advertiser with regards to the Processing by Nativo of Advertiser Personal Data pursuant to or in connection with the Insertion Order shall:

(a)        be strictly required for the sole purpose of ensuring compliance with Data Protection Laws; and

(b)        not relate to the scope of the Nativo or otherwise materially change the services to be provided by Nativo under the Insertion Order.  

2.9           Notwithstanding anything to the contrary herein, Nativo may terminate the Insertion Order in its entirety upon written notice to Advertiser with immediate effect if Nativo considers (in its reasonable discretion) that:

(a)        it is unable to adhere to, perform or implement any instructions issued by Advertiser due to the technical limitations of its systems, equipment and/or facilities, and/or

(b)        to adhere to, perform or implement any such instructions would require disproportionate effort (whether in terms of time, cost, available technology, manpower or otherwise).

2.10         Advertiser represents and warrants on an ongoing basis that, for the purposes of Article 6 of the GDPR, there is, and will be throughout the term of the Insertion Order, a legal basis for the Processing by Nativo of Advertiser Personal Data in accordance with this Data Protection Addendum and the Insertion Order (including, any and all instructions issued by Advertiser from time to time in respect of such Processing).

3.              NATIVO PERSONNEL

Nativo shall take reasonable steps to ensure the reliability of any Nativo Personnel who may Process Advertiser Personal Data, ensuring:

(a)        that access is strictly limited to those individuals who need to know or access the relevant Advertiser Personal Data for the purposes described in this Data Protection Addendum; and

(b)        that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4.              SECURITY

4.1           Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Nativo shall in relation to the Advertiser Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

4.2           In assessing the appropriate level of security, Nativo shall take account in particular of the risks presented by the Processing, in particular from a Personal Data Breach.

5.              SUBPROCESSING

5.1           Advertiser authorises Nativo to appoint Subprocessors in accordance with this Paragraph 5.

5.2           Nativo may continue to use those Subprocessors already engaged by Nativo as at the date of this Data Protection Addendum, subject to Nativo in each case as soon as reasonably practicable meeting the obligations set out in Paragraph 5.4.

5.3           Nativo shall give Advertiser prior written notice of the appointment of any new Subprocessor, including reasonable details of the Processing to be undertaken by the Subprocessor. If, within ten (10) Business Days of receipt of that notice, Advertiser notifies Nativo in writing of any objections (on reasonable grounds) to the proposed appointment:

(a)        Nativo shall use reasonable efforts to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and

(b)        where:

(i)       such a change cannot be made within sixty (60) days from Nativo’s receipt of Advertiser’s notice;

(ii)       no commercially reasonable change is available; and/or

(iii)      Advertiser declines to bear the cost of the proposed change,

notwithstanding anything in the Insertion Order, Nativo and/or Advertiser may by written notice to the other Party with immediate effect terminate the Insertion Order either in whole or to the extent that it relates to the Services which require the use of the proposed Subprocessor.

5.4           With respect to each Subprocessor, Nativo shall:

(a)        before the Subprocessor first Processes Advertiser Personal Data (or, as soon as reasonably practicable, in accordance with Paragraph 5.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Advertiser Personal Data required by this Data Protection Addendum; and

(b)        ensure that the arrangement between Nativo and the Subprocessor is governed by a written contract including terms which:

(i)          offer at least an equivalent level of protection for Advertiser Personal Data as those set out in this Data Protection Addendum (including, in particular, those set out in Paragraph 4, above); and

(ii)         meet the requirements of Article 28(3) of the GDPR.

6.              DATA SUBJECT RIGHTS

6.1           Taking into account the nature of the Processing, Nativo shall provide Advertiser with such assistance as may be reasonably necessary and technically possible in the circumstances, to assist Advertiser in fulfilling its obligation to respond to Data Subject Requests.

6.2           Nativo shall:

(a)        promptly notify Advertiser if Nativo receives a Data Subject Request; and

(b)        ensure that Nativo does not respond to any Data Subject Request except on the documented instructions of Advertiser (and in such circumstances, at Advertiser’s cost) or as required by applicable laws, in which case Nativo shall to the extent permitted by applicable laws inform Advertiser of that legal requirement before Nativo responds to the Data Subject Request.

7.              PERSONAL DATA BREACH

7.1           Nativo shall notify Advertiser without undue delay upon Nativo becoming aware of a Personal Data Breach affecting Advertiser Personal Data, providing Advertiser with sufficient information (insofar as such information is within Nativo’s possession) to allow Advertiser to meet any obligations to report or inform affected Data Subjects of the Personal Data Breach under Data Protection Laws.

7.2           Nativo shall co-operate with Advertiser and take such reasonable commercial steps as may be directed by Advertiser to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8.              DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION

Nativo shall provide reasonable assistance to Advertiser, at Advertiser’s cost, with any data protection impact assessments, and prior consultations with Supervisory Authorities, which Advertiser reasonably considers to be required of Advertiser by Article 35 or 36 of the GDPR, in each case solely in relation to Processing of Advertiser Personal Data by, and taking into account the nature of the Processing and information available to, Nativo.

9.              DELETION OF ADVERTISER PERSONAL DATA

9.1           Subject to Paragraph 9.2, Nativo shall promptly and in any event within ten (10) Business Days of the date of cessation of any Services involving the Processing of Advertiser Personal Data (the “Cessation Date”), Delete and/or procure the Deletion of all copies of those Advertiser Personal Data. If requested by Advertiser, Nativo shall provide written certification to Advertiser that it has fully complied with this Paragraph 9.1 within ten (10) Business Days of the date of such request.

9.2           Nativo may retain Advertiser Personal Data after the Cessation Date to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that Nativo shall ensure the confidentiality of all such Advertiser Personal Data and shall ensure that such Advertiser Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

10.           AUDIT RIGHTS

10.1         Nativo shall make available to Advertiser on request information reasonably necessary to demonstrate compliance with this Data Protection Addendum.

10.2         Subject to Paragraphs 10.3 and 10.4, in the event that Advertiser (acting reasonably) is able to provide documentary evidence that the information made available by Nativo pursuant to Paragraph 10.1 is insufficient to demonstrate Nativo’s compliance with this Data Protection Addendum, Nativo shall allow for and contribute to audits, including on-premise inspections, by Advertiser or an auditor mandated by Advertiser in relation to the Processing of the Advertiser Personal Data by Nativo.

10.3         Advertiser shall give Nativo reasonable notice of any audit or inspection to be conducted under Paragraph 10.2 (which shall in no event be less than thirty (30) days’ notice unless required by a Supervisory Authority pursuant to Paragraph 10.4(f)(ii)) and shall use its best efforts (and ensure that each of its mandated auditors uses its best efforts) to avoid causing, and hereby indemnifies Nativo in respect of, any damage, injury or disruption to Nativo’s premises, equipment, Personnel, data, and business (including any interference with the confidentiality or security of the data of Nativo’s other customers or the availability of Nativo’s services to such other customers) while its Personnel and/or its auditor’s Personnel (if applicable) are on those premises in the course any on-premise inspection.

10.4         Nativo need not give access to its premises for the purposes of such an audit or inspection:

(a)        to any individual unless he or she produces reasonable evidence of identity and authority;

(b)        to any auditor whom Nativo has not given its prior written approval (not to be unreasonably withheld);

(c)        unless the auditor enters into a non-disclosure agreement with Nativo on terms acceptable to Nativo;

(d)        where, and to the extent that, Nativo considers, acting reasonably, that to do so would result in interference with the confidentiality or security of the data of Nativo’s other customers or the availability of Nativo’s services to such other customers;

(e)        outside normal business hours at those premises; or

(f)         on more than one (1) occasion in each period of twelve (12) months during the term of the Insertion Order (or where the term of the Insertion Order is less than (12) months, on more than one (1) occasion during such shorter term), except for any additional audits or inspections which:

(i)          Advertiser reasonably considers necessary because of a Personal Data Breach; or

(ii)         Advertiser is required to carry out by Data Protection Law or a Supervisory Authority,

where Advertiser has identified the Personal Data Breach or the relevant requirement in its notice to Nativo of the audit or inspection.

10.5         The Parties shall discuss and agree the costs of any inspection or audit to be carried out by or on behalf of Advertiser pursuant to this Paragraph 10 in advance of such inspection or audit and, unless otherwise agreed in writing between the Parties, Advertiser shall bear any third party costs in connection with such inspection or audit and reimburse Nativo for all costs incurred by Nativo and time spent by Nativo (at Nativo’s then-current professional services rates) in connection with any such inspection or audit.

11.           RESTRICTED TRANSFERS

11.1         To the extent that any Processing by Nativo of Advertiser Personal Data takes place in a Third Country, the Parties agree that the Standard Contractual Clauses attached as Annex Two to this Data Protection Addendum shall apply in respect of that Transfer and the associated Processing.

11.2         Nativo agrees that no Advertiser Personal Data shall be Processed by any Subprocessor outside the EEA in a Third Country (“Third Country Subprocessor”) otherwise than in accordance with Chapter V of the GDPR.

11.3         Without limiting the other mechanisms available to achieve adequacy that may be available to Nativo under Chapter V of the GDPR in respect of Transfers to Third Country Subprocessors, Advertiser authorises Nativo to enter into the Standard Contractual Clauses (as agent for Advertiser) as the ‘data exporter’ and with Third Country Subprocessors as the ‘data importer’.

 

Part Two: Jointly‑controlled Personal Data

12.           STATUS

In respect of Jointly‑controlled Personal Data, the Parties acknowledge that they act as Joint Data Controllers and this Part Two of this Data Protection Addendum is intended to determine (as between the Parties) their respective:

(a)        responsibilities for compliance with the obligations under the GDPR; and

(b)        roles and relationships of the Parties vis-à-vis Data Subjects of Jointly‑controlled Personal Data.

13.           COMPLIANCE

13.1         Each Party shall comply with all applicable Data Protection Laws in its Processing of Jointly‑controlled Personal Data.

13.2         Each Party represents and warrants on an ongoing basis, and undertakes, that, for the purposes of Article 6 of the GDPR, it shall:

(a)        identify and document a valid legal basis for its Processing of Jointly‑controlled Personal Data; and

(b)        only Process that Jointly‑controlled Personal Data in accordance with such legal basis.

14.           RESTRICTED TRANSFERS

To the extent that any Processing by Nativo of Jointly‑controlled Personal Data takes place in a Third Country, and constitutes a Transfer from Advertiser to Nativo, the Parties agree that they shall either:

(a)        populate and enter into the standard contractual clauses issued by the European Commission for the transfer of Personal Data from Data Controllers established in the EU/EEA to Data Controllers established in Third Countries (Set II); or

(b)        act reasonably in agreeing on another mechanism available to achieve adequacy that may be available to the Parties under Chapter V of the GDPR,

in respect of such Transfer.

15.           DATA SECURITY

15.1         Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, each Party shall in relation to the Jointly‑controlled Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

15.2         In assessing the appropriate level of security, each Party shall take account in particular of the risks presented by the relevant Processing, in particular from a Personal Data Breach.

16.           DATA SUBJECT RIGHTS

Taking into account the nature of the Processing, if and to the extent applicable in the context of the relevant Data Subject Request, each Party shall provide the other with such assistance as may be reasonably necessary and technically possible in the circumstances, to assist the other in fulfilling its obligation to respond to Data Subject Requests.

 

Part 3: General

17.           CHANGE IN LAWS

17.1         In the event that there is a change in either the Data Protection Laws and/or the ePrivacy Regulations that Nativo considers (acting reasonably) would mean that Nativo is no longer able to provide the Services (including Processing and/or Transferring Advertiser Personal Data and/or Jointly‑controlled Personal Data) in accordance with its obligations under:

(a)        Data Protection Laws; and/or

(b)        the ePrivacy Regulations,

Nativo reserves the right to make such changes to the Services and to amend any part of this Data Protection Addendum as it considers reasonably necessary to ensure that Nativo is able to provide the Services in accordance with Data Protection Laws and/or the ePrivacy Regulations (as applicable). 

17.2         In the event that Advertiser considers (acting reasonably) that any required changes made either to the Services and/or this Data Protection Addendum pursuant to Paragraph 19.1 will cause material harm to Advertiser, Advertiser may terminate the Insertion Order in its entirety upon written notice to Nativo with immediate effect.

18.           ANONYMOUS DATA

Advertiser acknowledges and agrees that Nativo shall be freely able to use and disclose Anonymised Data for Nativo’s own business purposes.

 

This Data Protection Addendum has been entered into and become a binding and effective part of the Insertion Order with effect from the Addendum Effective Date. In the event of any conflict between the Insertion Order (including any terms referenced therein) and this Data Protection Addendum, this Data Protection Addendum shall control.

 

Annex One to Data Protection Addendum

Data Processing Details

This Annex One to the Data Protection Addendum includes certain details of the Processing of Advertiser Personal Data as required by Article 28(3) GDPR.

Subject matter and duration of the Processing of Advertiser Personal Data

The subject matter and duration of the Processing of the Advertiser Personal Data are set out in the Insertion Order and the Data Protection Addendum.

The nature and purpose of the Processing of Advertiser Personal Data

-        In respect of the Advertiser Personnel Data (as defined below), to enable Nativo to liaise with Advertiser’s Personnel in connection with provision of the Services.

-        In respect of the Advertiser-Supplied Segments (as defined below), to facilitate the delivery and targeting of Ads (to be displayed in digital advertising inventory on Publisher Properties) based on Advertiser-Supplied Segments.

-        In respect of the Advertiser Site Data (as defined below) to: (a) facilitate the re-targeting of Ads (to be displayed in digital advertising inventory on Publisher Properties) based on the Advertiser Site Data; and (b) track and measure conversions (i.e., end users who take action on Advertiser properties after viewing Ads or other content).

The types of Advertiser Personal Data to be Processed 

-        The first name, last name, email addresses and other contact details of Advertiser’s Personnel with whom Nativo needs to liaise in the provision of the Services (“Advertiser Personnel Data”).

-        Any demographic, behavioural, contextual, and/or other segments / groupings of Data Subjects that are supplied by Advertiser (directly or through a third party engaged by Advertiser) (the “Advertiser-Supplied Segments”).

-        Cookie ID, IP address, and reference data tied to the Cookie ID, such as pages visited, Ads viewed, frequency of Ads viewed, device and browser type, referring page URL, and actions on Advertiser properties (the “Advertiser Site Data”).

 

The categories of Data Subject to whom the Advertiser Personal Data relates

-        In respect of the Advertiser Personnel Data– Advertiser’s Personnel.

-        In respect of the Advertiser-Supplied Segments, end users of Advertiser’s websites or other properties from which Advertiser or its third-party supplier collects the Personal Data comprising the Advertiser-Supplied Segments.

-        In respect of the Advertiser Site Data, end users of Advertiser’s websites or other properties.

 

The obligations and rights of Advertiser

-        The obligations and rights of Advertiser are set out in the Insertion Order and the Data Protection Addendum.

 

Annex Two to Data Protection Addendum

C2P Standard Contractual Clauses

Commission Decision C(2010)593
Standard Contractual Clauses (processors)

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

These Standard Contractual Clauses are entered into by and between:

(A)   Advertiser (the data exporter); and

(B)   Nativo (the data importer)

each a “party”; together “the parties”.

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 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 Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary paragraph

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 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).

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 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.

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.

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.

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, namely England.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding paragraphs 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 paragraph 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, namely England.

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.

 

Appendix 1 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Data exporter

The data exporter is:

·       An Advertiser seeking to place Ads in digital advertising inventory on Publisher Properties.

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

·       The provider of a platform that facilitates the serving and targeting of Ads into digital advertising inventory in Publisher Properties.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

·       In respect of the Advertiser Personnel Data (each as defined in the Annex One to the Data Protection Addendum) – Advertiser’s Personnel.

·       In respect of the Advertiser-Supplied Segments, end users of Advertiser’s websites or other properties from which Advertiser or its third-party supplier collects the Personal Data comprising the Advertiser-Supplied Segments.

·       In respect of the Advertiser Site Data, end users of Advertiser’s websites or other properties.

Categories of data

The personal data transferred concern the following categories of data (please specify):

·       Advertiser Personnel Data.  

·       Advertiser-Supplied Segments

·       Advertiser Site Data 

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

·       None

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

·       In respect of the Advertiser Personnel Data, Processing to enable Nativo to liaise with Advertiser’s Personnel in connection with provision of the Services.

·       In respect of the Advertiser-Supplied Segments, Processing to facilitate the delivery and targeting of Content (to be displayed in digital advertising inventory on Publisher Properties) based on Advertiser-Supplied Segments.

·       In respect of the Advertiser Site Data, Processing to: (a) facilitate the re-targeting of Ads (to be displayed in digital advertising inventory on Publisher Properties) based on the Advertiser Site Data; and (b) track and measure conversions (i.e., end users who take action on Advertiser properties after viewing Ads or other content).

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

·       The technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) are those established and maintained under Paragraph 4 of the Data Protection Addendum.