Data Protection Addendum

This Data Protection Addendum (“Addendum”) forms part of the Maxx Publisher Terms (“Principal Agreement”), or other written or electronic agreement, between: (i) partner (“Publisher”) acting on its own behalf and as agent for each Publisher Affiliate; and (ii) Maxx (“Company”) acting on its own behalf and as agent for each Company Affiliate, to reflect the parties’ agreement with regard to the processing of personal data.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.

Definitions
1. In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
  1. “Applicable Laws” means (a) Laws of England and Wales, European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;
  2. “Company Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Company, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
  3. “Company Group Member” means Company or any Company Affiliate;
  4. “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Company Group Member pursuant to or in connection with the Principal Agreement;
  5. “Contracted Processor” means Publisher or a Subprocessor;
  6. “Data Protection Laws” means UK Data Protection Act 2018, EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
  7. “EEA” means the European Economic Area;
  8. “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
  9. “GDPR” means EU General Data Protection Regulation 2016/679;
  10. “Restricted Transfer” means:
    1. a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or
    2. an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 12 below;
  11. “Services” means the services and other activities to be supplied to or carried out by or on behalf of Publisher for Company Group Members pursuant to the Principal Agreement;
  12. “Standard Contractual Clauses” means the contractual clauses set out in Annex 2, amended as indicated (in square brackets and italics) in that Annex and under section 13.4;
  13. “Subprocessor” means any person (including any third party and any Publisher Affiliate, but excluding an employee of Publisher or any of its sub-contractors) appointed by or on behalf of Publisher or any Publisher Affiliate to Process Personal Data on behalf of any Company Group Member in connection with the Principal Agreement; and
  14. “Publisher Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Publisher, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
2. The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
3. The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
Authority
Publisher warrants and represents that, before any Publisher Affiliate Processes any Company Personal Data on behalf of any Company Group Member, Publisher’s entry into this Addendum as agent for and on behalf of that Publisher Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Publisher Affiliate. Also,
1. Publisher, Publisher Affiliate and Subprocessor have all relevant licences required for the processing of Personal Data. Where applicable, including registered with the Information Commissioner Office (ICO) for the processing of Personal Data in the United Kingdom (UK)
Processing of Company Personal Data
1. Publisher and each Publisher Affiliate shall:
  1. comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
  2. not Process Company Personal Data other than on the relevant Company Group Member’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Publisher or the relevant Publisher Affiliate shall to the extent permitted by Applicable Laws inform the relevant Company Group Member of that legal requirement before the relevant Processing of that Personal Data.
  3. Have in place policies and procedures for the processing of Personal Data, including but not limited to Privacy Policy, Data Use Policy and Cyber Security Policy. Copies of which to be available upon request by Company Group Member or Maxx
2. Each Company Group Member:
  1. instructs Publisher and each Publisher Affiliate (and authorises Publisher and each Publisher Affiliate to instruct each Subprocessor) to:
    1. Process Company Personal Data; and
    2. in particular, transfer Company Personal Data to any country or territory,as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
  2. warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 3.2.1 on behalf of each relevant Company Affiliate.
3. Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Company Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Company may make reasonable amendments to Annex 1 by written notice to Publisher from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Addendum.
Publisher and Publisher Affiliate Personnel
Publisher and each Publisher Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Security
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, Publisher and each Publisher Affiliate shall in relation to the Company Personal Data implement appropriate technical and organizational 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.
2. In assessing the appropriate level of security, Publisher and each Publisher Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
Subprocessing
1. Each Company Group Member authorises Publisher and each Publisher Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Principal Agreement.
2. Publisher and each Publisher Affiliate may continue to use those Subprocessors already engaged by Publisher or any Publisher Affiliate as at the date of this Addendum, subject to Publisher and each Publisher Affiliate in each case as soon as practicable meeting the obligations set out in section 6.4.
3. With respect to each Subprocessor, Publisher or the relevant Publisher Affiliate shall:
  1. before the Subprocessor first Processes Company Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Company Personal Data required by the Principal Agreement;
  2. ensure that the arrangement between on the one hand (a) Publisher, or (b) the relevant Publisher Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR; and
  3. provide to Company for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Company may request from time to time.
4. Publisher and each Publisher Affiliate shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Company Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Publisher.
Data Subject Rights
1. Taking into account the nature of the Processing, Publisher and each Publisher Affiliate shall assist each Company Group Member by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company Group Members’ obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
2. Publisher shall:
  1. promptly notify Company if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
  2. ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Publisher shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
Personal Data Breach
1. Publisher shall notify Company without undue delay upon Publisher or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow each Company Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
2. Such notification shall, at a minimum:
  1. describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;
  2. communicate the name and contact details of Publisher’s data protection officer or other relevant contact from whom more information may be obtained;
  3. describe the likely consequences of the Personal Data Breach; and
  4. describe the measures taken or proposed to be taken to address the Personal Data Breach.
3. Publisher shall cooperate with Company and each Company Group Member and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Data Protection Impact Assessment and Prior Consultation
Publisher and each Publisher Affiliate shall provide reasonable assistance to each Company Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required of any Company Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Deletion or return of Company Personal Data
1. Subject to sections 10.2 and 10.3 Publisher and each Publisher Affiliate shall promptly and in any event within 24 hours of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.
2. Subject to section 10.3, Company may in its absolute discretion by written notice to Publisher within 24 hours of the Cessation Date require Publisher and each Publisher Affiliate to (a) return a complete copy of all Company Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to Publisher; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor. Publisher and each Publisher Affiliate shall comply with any such written request within 24 hours of the Cessation Date.
3. Each Contracted Processor may retain Company Personal Data 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 Publisher and each Publisher Affiliate shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
4. Publisher shall provide written certification to Company that it and each Publisher Affiliate has fully complied with this section 10 within 48 hours of the Cessation Date.
General Terms
Governing law and jurisdiction
1. Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
  1. the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
  2. this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
2. Nothing in this Addendum reduces Publisher’s or any Publisher Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Publisher or any Publisher Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
3. Subject to section 13.2, 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, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.

ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA

This Annex 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.

Subject Matter and Duration of the Processing of Company Personal Data
The subject matter and duration of the Processing of the Company Personal Data are set out in the Principal Agreement and this Addendum.
The nature and purpose of the Processing of Company Personal Data
Publisher will process Company Personal Data as necessary to perform the services set forth in the Principal Agreement, and as further instructed by Company in its use of Publisher services.
The types of Company Personal Data to be Processed
Personal details and contact information including name, address, email address, title, position, contact information, social profile information, IP address, unique user IDs (such as cookie IDs), marketing profiles, connection data, localisation data.
The categories of Data Subject to whom the Company Personal Data relates
- prospects, customers, business partners, Publishers (who are natural persons)
- employees or contact persons of data exporter’s prospects, customers, business partners and Publishers
- employees, agents, advisors, contractors (who are natural persons)
The obligations and rights of Company and Company Affiliates
The obligations and rights of Company and Company Affiliates are set out in the Principal Agreement and this Addendum.