This Data Protection Addendum ("Addendum") forms part of the Perform[cb] Marketer Terms & Conditions ("Principal Agreement") between: (i) Marketer ("Company") acting on its own behalf and as agent for each Company Affiliate; and (ii) Perform[cb] ("Vendor") acting on its own behalf and as agent for each Vendor Affiliate, to reflect the parties’ agreement with regard to the processing of personal data as applicable to each of Company and Vendor.

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.

1.  Definitions

1.1  In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:

1.1.1  "Applicable Laws" means all applicable laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;

1.1.2  "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;

1.1.3  "Company Group Member" means Company or any Company Affiliate;

1.1.4  "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, which, for the avoidance of doubt includes, includes Personal Data received from the MMP;

1.1.5  "Contracted Processor" means Vendor or a Subprocessor;

1.1.6  "Data Protection Laws" means all applicable data privacy, data protection and cybersecurity laws, rules and regulations to which the Personal Data are subject. “Data Protection Laws” shall include, but not be limited to, the California Consumer Privacy Act of 2018 (“CCPA”) and the Gramm-Leach-Bliley Act;

1.1.7  "Restricted Transfer" means:

1.1.7.1  a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or

1.1.7.2  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);

1.1.8  "Services" means the services and other activities to be supplied to or carried out by or on behalf of Vendor for Company Group Members pursuant to the Principal Agreement;

1.1.9  "Subprocessor" means any person (including any third party and any Vendor Affiliate, but excluding an employee of Vendor or any of its sub-contractors) appointed by or on behalf of Vendor or any Vendor Affiliate to Process Personal Data on behalf of any Company Group Member in connection with the Principal Agreement; and

1.1.10  "Vendor Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Vendor, 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.

1.2  “Personal Data” shall have the meaning assigned to the terms “personal data” or “personal information” under applicable Data Protection Laws, and will, at a minimum, mean any information relating to an identified or identifiable natural person. 

1.3  “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure or destruction. 

1.4. “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Company Personal Data. 

1.5  The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.

2.  Authority

Vendor warrants and represents that, before any Vendor Affiliate Processes any Company Personal Data on behalf of any Company Group Member, Vendor's entry into this Addendum as agent for and on behalf of that Vendor Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Vendor Affiliate.

3.  Processing of Company Personal Data

3.1  Vendor and each Vendor Affiliate shall:

3.1.1  comply with all applicable Data Protection Laws in the Processing of Company Personal Data; 

3,1,2 not sell Company Personal Data as the term “sell” is defined by the CCPA; 

3.1.3 Process Company Personal Data solely for the purpose of providing the Services to Company, and solely to the extent necessary to provide the Services to Company, in each case, in accordance with the Agreement, this Addendum and Data Protection Laws; and

3.1.4  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 Vendor or the relevant Vendor Affiliate shall to the extent permitted by Applicable Laws inform the relevant Company Group Member as promptly as reasonably possible of that legal requirement before the relevant Processing of that Personal Data.

3.2  Each Company Group Member:

3.2.1  instructs Vendor and each Vendor Affiliate (and authorises Vendor and each Vendor Affiliate to instruct each Subprocessor) to:

3.2.1.1  Process Company Personal Data solely for the purpose of providing the Services to Company, and solely to the extent necessary to provide the Services to Company, in each case, in accordance with the Agreement, this Addendum and Data Protection Laws; and

3.2.1.2  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

3.2.2 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.

3.3  Reserved.

4.  Vendor and Vendor Affiliate Personnel

Vendor and each Vendor 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.

5.  Security

5.1  Taking into account 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, Vendor and each Vendor Affiliate shall in relation to the Company Personal Data implement appropriate administrative, physical, technical and organizational measures and safeguards to ensure a level of security appropriate to that risk in accordance with Data Protection Laws (the “Information Security Program”), which, at a minimum, include (a) pseudonymization of Company Personal Data where appropriate, and encryption of Company Personal Data in transit and at rest; (b) the ability to ensure the ongoing confidentiality, integrity, availability of Vendor’s Processing and Company Personal Data; (c) the ability to restore the availability and access to Company Personal Data in the event of a physical or technical incident; and (d) a process for regularly testing, assessing and evaluating the effectiveness of Vendor’s Information Security Program to ensure the security of its Processing and Company Personal Data;.

5.2  In assessing the appropriate level of security, Vendor and each Vendor Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Security Incident.

6.  Subprocessing

6.1  Each Company Group Member authorises Vendor and each Vendor 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.

6.2  Vendor and each Vendor Affiliate may continue to use those Subprocessors already engaged by Vendor or any Vendor Affiliate as at the date of this Addendum, subject to Vendor and each Vendor Affiliate in each case as soon as practicable meeting the obligations set out in section 6.4.  

6.3  Vendor shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, Company notifies Vendor in writing of any objections (on reasonable grounds) to the proposed appointment:

Neither Vendor nor any Vendor Affiliate shall appoint (nor disclose any Company Personal Data to) the proposed Subprocessor except with the prior written consent of Company.

6.4  With respect to each Subprocessor, Vendor or the relevant Vendor Affiliate shall:

6.4.1  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;

6.4.2  ensure that the arrangement between on the one hand (a) Vendor, or (b) the relevant Vendor 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 applicable Data Protection Laws; and

6.4.3  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.

6.5  Vendor and each Vendor 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 Vendor. Vendor shall remain fully liable to Company for Vendor’s Subprocessors’ (and their subcontractors’ if applicable) failure to perform their obligations with respect to the Processing of Company Personal Data.

7.  Data Subject Rights

7.1  Taking into account the nature of the Processing, Vendor and each Vendor 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 from individuals exercising their rights in Company Personal Data granted to them under the Data Protection Laws (e.g., access, deletion, etc). 

7.2  Vendor shall:

7.2.1  promptly notify Company if any Contracted Processor or Vendor receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

7.2.2  ensure that the Contracted Processor and/or Vendor 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 Vendor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor or Vendor, as applicable, responds to the request.

8.  Security Incident

8.1  Vendor shall notify Company without undue delay (but in any event within 24 hours) upon Vendor or any Subprocessor becoming aware of or reasonably suspecting a Security Incident affecting Company Personal Data, providing Company with sufficient information to allow each Company Group Member to meet any obligations to report or inform individuals of the Security Incident under the Data Protection Laws.

Such notification shall, at a minimum:

8.1.1  describe the nature of the Security Incident, the categories and numbers of individuals concerned, and the categories and numbers of Personal Data records concerned;

8.1.2  communicate the name and contact details of Vendor's data protection officer or other relevant contact from whom more information may be obtained;

8.1.3  describe the likely consequences of the Security Incident; and

8.1.4  describe the measures taken or proposed to be taken to address the Security Incident.

8.2  Vendor 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 Security Incident.  In the event of such Security Incident affecting Company Personal Data, Company has the right to control the breach notification process, and Vendor will be liable for the following costs and expenses incurred by Company in connection with such Security Incident: (a) the cost of preparing and delivering notices to affected individuals; (b) the cost of providing credit monitoring services or other credits or benefits extended to affected individuals; (c) reasonable attorneys’ fees associated with investigation, remediation and response; (d) liability to third parties that Company incurs in connection with the Security Incident (such as amounts paid or for which Company is liable to third parties in tort or arising out of contracts); and (e) actual labor and subcontractor costs, and additional costs incurred in connection with call center support for security incident breach notification. 

8.3. Vendor will deploy and follow policies and procedures to detect, respond to, and otherwise address Security Incidents including procedures to (i) identify and respond to reasonably suspected or known Security Incidents, mitigate harmful effects of Security Incidents, document Security Incidents and their outcomes, and (ii) restore the availability or access to Company Personal Data in a timely manner. 

9.  Data Protection Impact Assessment and Prior Consultation

If applicable to any Company Group Member, Vendor and each Vendor Affiliate shall provide reasonable assistance to each Company Group Member with any data protection impact assessments, and prior consultations with competent data privacy authorities, which Company reasonably considers to be required of any Company Group Member by any applicable 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.

10.  Deletion or return of Company Personal Data

10.1  Subject to sections 10.2 and 10.3 Vendor and each Vendor 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.

10.2  Subject to section 10.3, Company may in its absolute discretion by written notice to Vendor within 24 hours of the Cessation Date require Vendor and each Vendor 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 Vendor; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor. Vendor and each Vendor Affiliate shall comply with any such written request within 24 hours of the Cessation Date.

10.3  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 Vendor and each Vendor 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.

10.4  Vendor shall provide written certification to Company that it and each Vendor Affiliate has fully complied with this section 10 within 48 hours of the Cessation Date.

11.  Audit rights

11.1 Vendor and each Vendor Affiliate shall make available to each Company Group Member on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by any Company Group Member or an auditor mandated by any Company Group Member in relation to the Processing of the Company Personal Data by the Contracted Processors.

11.2  Company or the relevant Company Affiliate undertaking an audit shall give Vendor or the relevant Vendor Affiliate reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors' premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:

11.2.1  to any individual unless he or she produces reasonable evidence of identity and authority;

11.2.2  outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company or the relevant Company Affiliate undertaking an audit has given notice to Vendor or the relevant Vendor Affiliate that this is the case before attendance outside those hours begins; or

11.2.3  for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which:

11.2.3.1  Company or the relevant Company Affiliate undertaking an audit reasonably considers necessary because of genuine concerns as to Vendor's or the relevant Vendor Affiliate’s compliance with this Addendum; or

11.2.3.2  A Company Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Company or the relevant Company Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Vendor or the relevant Vendor Affiliate of the audit or inspection.

12.  Reserved

13.  General Terms

Governing law and jurisdiction

13.1  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 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.

Order of precedence

13.2  Nothing in this Addendum reduces Vendor's or any Vendor Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Vendor or any Vendor Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. 

13.3  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.

Changes in Data Protection Laws, etc.

13.4  Company may:

13.4.1  

propose any variations to this Addendum which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.

13.5  If Company proposes variations under section 13.4.1, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company's notice as soon as is reasonably practicable.

13.6  Neither Company nor Vendor shall require the consent or approval of any Company Affiliate or Vendor Affiliate to amend this Addendum pursuant to this section 13.4 or otherwise.

Severance

13.7  Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.