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Subject to Section below, Customer may use the Services to process Customer Personal Data in accordance with this Data Processing Amendment.

Customer may not use the Services to process Customer Personal Data which in itself personally identifies an individual (such as a name, social security number or billing information), or other data which can be reasonably linked to such information by AudienceProject.

This Data Processing Amendment only applies if and to the extent that the parties process Customer Personal Data under the AudienceProject Agreement, including with respect to personal data in accordance with the EU Data Protection Directive 95/46/EC and all local laws and regulations which amend or replace any of them, including the GDPR.

This Data Processing Agreement (“DPA”), that includes the Standard Contractual Clauses adopted by the European Commission, as applicable, reflects the parties’ agreement with respect to the terms governing the Processing of Personal Data under the AudienceProject Client Terms and Conditions (the “Agreement”). This DPA is an amendment to the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement, an Order or an executed amendment to the Agreement. Upon its incorporation into the Agreement, the DPA will form a part of the Agreement.

The term of this DPA shall follow the term of the Agreement. Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.

Definitions

"AudienceProject Group"* means those AudienceProject Affiliates that may be used to provide the Services to Customer.

"Additional Products"* means products, services and applications (whether made available by AudienceProject or a third party) that are not part of the Services.

"Affiliate"* means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.

"Agreement"* means the AudienceProject Agreement and this Data Processing Amendment.

"Customer Personal Data"* means any Personal Data collected, transmitted, analysed or otherwise processed through the Services which concerns the characteristics and activities of users visiting web pages, apps or other properties or services linked to your AudienceProject account(s).

“Controller”* means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

“Data Protection Law”* means all applicable legislation relating to data protection and privacy including without limitation the EU Data Protection Directive 95/46/EC and all local laws and regulations which amend or replace any of them, including the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time. The terms “process”, “processes” and “processed” will be construed accordingly.

“Data Subject”* means the individual to whom Personal Data relates.

“GDPR”* means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

“Instruction”* means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).

“Personal Data”* means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law

“Personal Data Breach”* means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

“Processing”* means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.

“Processor”* means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.

“Standard Contractual Clauses”* means the clauses attached hereto as Exhibit 1 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

"Subprocessors"* means the AudienceProject Group and Third Party Suppliers.

"Services"* means, for purposes of this Data Processing Amendment, those services defined as the "AudienceReport", "UserReport", AudienceKits or "AudienceData" (as applicable) under the Agreement.

"Third Party Suppliers"* means the third party suppliers engaged by the AudienceProject Group for the purposes of processing Customer Personal Data in the context of the provision of the Services.

Processing of Customer Personal Data

Processor and controller

With respect to Customer Personal Data collected and stored in the services; AudienceReport, UserReport, EngagementReport and AudienceHub under the Agreement, the parties acknowledge and agree that Customer shall be the controller and AudienceProject shall be a processor. Customer shall comply with its obligations as a controller and AudienceProject shall comply with its obligations as a processor under the Agreement. Where a Customer Affiliate is the controller (either alone or jointly with the Customer) with respect to certain Customer Personal Data, Customer represents and warrants to AudienceProject that it is legally authorized to instruct AudienceProject and otherwise act on behalf of such Customer Affiliate in relation to the Customer Personal Data in accordance with the Agreement, as amended.

With respect to Data processed and transferred in the services; AudienceData, the parties acknowledge and agree that Customer and AudienceProject shall be independent controllers. Both the Customer and AudienceProject shall comply with their individual obligations as a controllers under the Agreement.

Scope of Processing

AudienceProject will process Customer Personal Data only in accordance with Instructions from Customer through the settings of the services, i.e. (a) to operate, maintain and support the infrastructure used to provide the Services outlined in the privacy policy under 'How we use the collected information'; (b) to comply with Customer's instructions and processing instructions in their use, management and administration of the Services; (c) as otherwise instructed through settings of the Services. AudienceProject will only process Customer Personal Data in accordance with the Agreement.

Duration of the Processing

Personal Data will be Processed for the duration of the Agreement, subject to ‘Deletion of Personal Data’ of this DPA.

Other Services

Customer acknowledges that if it installs, uses, or enables Additional Products that interoperate with the Services but are not part of the Services itself, then the Services may allow such Additional Products to access Customer Personal Data as required for the interoperation of those Additional Products with the Services. By using such Additional Products, Customer authorizes AudienceProject to share Customer Personal Data with the Additional Products. The Agreement does not apply to the processing of Customer Personal Data transmitted to and from such other Additional Products. Such separate Additional Products are not required to use the Services and may be restricted for use as determined by Customer's system administrator in accordance with the Agreement.

Customer Responsibility

Within the scope of the Agreement and in its use of the services, Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data.

For the avoidance of doubt, Controller’s instructions for the Processing of Personal Data shall comply with the Data Protection Law. This DPA is Customer’s complete and final instruction to AudienceProject in relation to Personal Data and that additional instructions outside the scope of DPA would require prior written agreement between the parties.

Instructions shall initially be specified in the Agreement and may, from time to time thereafter, be amended, amplified or replaced by Controller in separate written instructions (as individual instructions).

Controller shall inform Processor without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data.

Obligations of Processor

Compliance with Instructions

With respect to Customer Personal Data collected and stored in the services; AudienceReport, UserReport, EngagementReport and AudienceHub under the Agreement, the parties acknowledge and agree that Customer is the Controller of Personal Data and AudienceProject is the Processor of that data. Processor shall collect, process and use Personal Data only within the scope of Controller’s Instructions and the Agreement. If the Processor believes that an Instruction of the Controller infringes the Data Protection Law, it shall immediately inform the Controller without delay. If Processor cannot process Personal Data in accordance with the Instructions due to a legal requirement under any applicable European Union or Member State law, Processor will (i) promptly notify the Controller of that legal requirement before the relevant Processing to the extent permitted by the Data Protection Law; and (ii) cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the Controller issues new instructions with which Processor is able to comply. If this provision is invoked, Processor will not be liable to the Controller under the Agreement for any failure to perform the applicable services until such time as the Controller issues new instructions in regard to the Processing.

Security

Processor shall take the appropriate technical and organizational measures to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data. Such measures include, but are not be limited to:

i. the prevention of unauthorized persons from gaining access to Personal Data Processing systems (physical access control),

ii. the prevention of Personal Data Processing systems from being used without authorization (logical access control),

iii. ensuring that persons entitled to use a Personal Data Processing system gain access only to such Personal Data as they are entitled to accessing in accordance with their access rights, and that, in the course of Processing or use and after storage, Personal Data cannot be read, copied, modified or deleted without authorization (data access control),

iv. ensuring that Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of Personal Data by means of data transmission facilities can be established and verified (data transfer control),

v. ensuring the establishment of an audit trail to document whether and by whom Personal Data have been entered into, modified in, or removed from Personal Data Processing systems (entry control),

vi. ensuring that Personal Data is Processed solely in accordance with the Instructions (control of instructions),

vii. ensuring that Personal Data is protected against accidental destruction or loss (availability control).

Upon Controller’s request, Processor shall provide a current Personal Data protection and security programme relating to the Processing hereunder.

Processor will facilitate Controller’s compliance with the Controller’s obligation to implement security measures with respect to Personal Data (including if applicable Controller’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR), by (i) implementing and maintaining the security measures described under Appendix 2, (ii) complying with the terms of Section 4.4 (Personal Data Breaches); and (iii) providing the Controller with information in relation to the Processing in accordance with Section 5 (Audits).

The AudienceProject systems are designed and built with data protection as one of the key considerations. Our data is stored by leading third-party database providers and cannot be accessed by any other person or system. Moreover, AudienceProject employees who access the data to provide services for clients or for system-development purposes has been suitably briefed on what constitutes the acceptable treatment of data.

You can read more about our Organisational and Technical safeguards at gdpr.audienceproject.com

Confidentiality

Processor shall ensure that any personnel whom Processor authorizes to process Personal Data on its behalf is subject to confidentiality obligations with respect to that Personal Data. The undertaking to confidentiality shall continue after the termination of the above-entitled activities.

Personal Data Breaches

Processor will notify the Controller as soon as practicable after it becomes aware of any of any Personal Data Breach affecting any Personal Data. At the Controller’s request, Processor will promptly provide the Controller with all reasonable assistance necessary to enable the Controller to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if Controller is required to do so under the Data Protection Law.

Data Subject Requests

Processor will provide reasonable assistance, including by appropriate technical and organizational measures and taking into account the nature of the Processing, to enable Controller to respond to any request from Data Subjects seeking to exercise their rights under the Data Protection Law with respect to Personal Data (including access, rectification, restriction, deletion or portability of Personal Data, as applicable), to the extent permitted by the law.

When AudienceProject acts as an independent controller, AudienceProject will respond to any request from Data Subjects seeking to exercise their rights under the Data Protection Law with respect to Personal Data (including access, rectification, restriction, deletion or portability of Personal Data, as applicable), to the extent permitted by the law.

Sub-Processors

Processor shall be entitled to engage sub-Processors to fulfil Processor’s obligations defined in the Agreement.  For these purposes, Controller consents to the engagement as sub-Processors of Processor’s affiliated companies and the third parties. For the avoidance of doubt, the above authorization constitutes Controller’s prior written consent to the sub-Processing by Processor for purposes of Clause 11 of the Standard Contractual Clauses.

Where Processor engages sub-Processors, Processor will enter into a contract with the sub-Processor that imposes on the sub-Processor the same obligations that apply to Processor under this DPA. Where the sub-Processor fails to fulfil its data protection obligations, Processor will remain liable to the Controller for the performance of such sub-Processors obligations.

Data Transfers

Controller acknowledges and agrees that, in connection with the performance of the services under the Agreement, Personal Data will be transferred to AudienceProject Aps.

AudienceProject may transfer Data to countries other than Denmark. We deploy the following safeguards if AudienceProject transfers Personal Data originating from the European Union to other countries not deemed adequate under applicable data protection law:

To comply with European Union data protection laws, AudienceProject only uses data storage services that are certified under the EU-US Privacy Shield. The Privacy Shield framework were developed to enable companies to comply with data protection requirements when transferring personal data from the European Union to the United States.

To learn more about the Privacy Shield Program, please see

http://www.privacyshield.gov/welcome

By using the Service, you consent to this transfer, processing and storage of Visitor and Customer Data.

Deletion of Personal Data

Deletion During Term for Processor Services With Deletion Functionality, if

(a) the functionality of the Processor Services includes the option for Customer to delete Customer Personal Data;
(b) Customer uses the Processor Services to delete certain Customer Personal Data; and
(c) the deleted Customer Personal Data cannot be recovered by Customer,

then AudienceProject will delete such Customer Personal Data from its systems as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.

Deletion during term for Processor Services Without Deletion Functionality, if the functionality of the Processor Services does not include the option for Customer to delete Customer Personal Data, then AudienceProject will comply with:

(a) any reasonable request from Customer to facilitate such deletion, insofar as this is possible taking into account the nature and functionality of the Processor Services and unless EU or EU Member State law requires storage; and

AudienceProject may charge a fee for any data deletion under this section. AudienceProject will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such data deletion.

Deletion on Term Expiry*
On expiry of the Term, Customer instructs AudienceProject to delete all Customer Personal Data (including existing copies) from AudienceProject’s systems in accordance with applicable law.

AudienceProject will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.

Audits

Controller may, prior to the commencement of Processing, and at regular intervals thereafter, audit the technical and organizational measures taken by Processor.

For such purpose, Controller may, e.g.,

obtain information from the Processor,
request Processor to submit to Controller an existing attestation or certificate by an independent professional expert, or
upon reasonable and timely advance agreement, during regular business hours and without interrupting Processor’s business operations, conduct an on-site inspection of Processor’s business operations or have the same conducted by a qualified third party which shall not be a competitor of Processor.

Processor shall, upon Controller’s written request and within a reasonable period of time, provide Controller with all information necessary for such audit, to the extent that such information is within Processor’s control and Processor is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.

Effect of these Data Processing Terms

If there is any conflict or inconsistency between the terms of these Data Processing Terms and the remainder of the Agreement, the terms of these Data Processing Terms will govern. Subject to the amendments in these Data Processing Terms, the Agreement remains in full force and effect.

Changes to these Data Processing Terms

AudienceProject may modify these data processing terms (including URLs referenced in these terms and the content within such URLs) from time to time. AudienceProject may make commercially reasonable changes to the Service from time to time. New applications, features or functionality may be offered from time to time as part of the Service and may be contingent upon your agreement to additional terms. If you do not agree to the modified terms for the Service, you should discontinue your use of the Service.

No amendment to or modification of this Agreement will be binding unless: (i) in writing and signed by a duly authorized representative of AudienceProject; (ii) you accept the updated terms online; or (iii) you continue to use the Service after AudienceProject has posted updates to the Agreement or any policy governing the Service.

Effective 25 May 2018 AudienceProject will process Personal Data in accordance with the GDPR requirements.

Parties to this DPA

This DPA is an amendment to and forms part of the Agreement.  Upon the incorporation of this DPA into the Agreement (i) Controller and the AudienceProject entity that are each a party to the Agreement are also each a party to this DPA.

If AudienceProject is not a party to the Agreement, the section of the Agreement entitled ‘Limitation of Liability’ shall apply as between Controller and AudienceProject, and in such respect any references to ‘AudienceProject’, ‘we’, ‘us’ or ‘our’ shall include both AudienceProject and the AudienceProject entity that is a party to the Agreement.

The legal entity agreeing to this DPA as Controller represents that it is authorized to agree to and enter into this DPA for, and is agreeing to this DPA solely on behalf of, the Controller.
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