This Data Processing Agreement (the “DPA”), entered into by the GWL Creative Limited customer identified on the applicable GWL Creative Limited document for GWL Creative Limited services (“Customer”) and GWL Creative Limited identified on the document (“GWL Creative Limited”), governs the processing of personal data that Customer uploads or otherwise provides GWL Creative Limited in connection with the services, the processing of data by GWL Creative Limited on behalf of Customer in connection with the services, and the processing of any personal data that GWL Creative Limited uploads or otherwise provides to Customer in connection with the services.
This DPA is incorporated into the relevant GWL Creative Limited services agreement attached to or incorporated by reference into the document previously executed by Customer, referred to generically in this DPA as the “GWL Creative Limited Contract”. Collectively, the DPA (including the SCCs, as defined herein), the GWL Creative Limited Contract(s), and the applicable service documents are referred to in this DPA as the “Agreement”. In the event of any conflict or inconsistency between any of the terms of the Agreement, the provisions of the following documents (in order of precedence) shall prevail: (a) the SCCs; (b) this DPA; (c) the GWL Creative Limited Contract(s); and (d) the applicable service(s) document to the GWL Creative Limited Contract(s). Except as specifically amended in this DPA, the GWL Creative Limited Contract(s) and applicable service(s) document remain unchanged and in full force and effect.
“Controller-to-Controller SCCs” means the Standard Contractual Clauses (Controller to Controller Transfers – Set II) in the Annex to the European Commission Decision of December 27, 2004 , as may be amended or replaced from time to time by the European Commission.
“Controller-to-Processor SCCs” means the Standard Contractual Clauses (Processors) in the Annex to the European Commission Decision of February 5, 2010 , as may be amended or replaced from time to time by the European Commission.
“Customer Personal Data” means Personal Data that GWL Creative Limited processes as a data processor for Customer. Customer Personal Data includes Personal Data that Customer uploads or otherwise provides GWL Creative Limited in connection with its use of GWL Creative Limited’s services or for which Customer is otherwise a data controller.
“Data Protection Requirements” means the General Data Protection Regulation, Local Data Protection Laws, and any applicable laws, regulations, and other legal requirements relating to (a) privacy, data security, consumer protection, marketing, promotion, and text messaging, e-mail, and other communications; and (b) the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of any Personal Data.
“European Personal Data” means Personal Data the sharing of which pursuant to this Agreement is regulated by the General Data Protection Regulation or Local Data Protection Laws.
“General Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council.
“Local Data Protection Laws” means any subordinate legislation and regulation implementing the General Data Protection Regulation.
“Personal Data” means information about an individual that
- can be used to identify, contact or locate a specific individual, including data that Customer chooses to provide to GWL Creative Limited from third-party services such as analytical tools and organisations or e-commerce tools and applications;
- can be combined with other information that can be used to identify, contact or locate a specific individual; or
- is defined as “personal data” or “personal information” by applicable laws or regulations relating to the collection, use, storage or disclosure of information about an identifiable individual.
“Personal Data Breach” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data.
“Process”and its cognates mean any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“SCCs” means all Controller-to-Processor SCCs and Controller-to-Controller SCCs entered into between the parties under the Agreement.
“Subprocessor” means any entity which provides processing services to GWL Creative Limited in furtherance of GWL Creative Limited’s processing on behalf of Customer.
“Supervisory Authority” means an independent public authority which is (i) established by a European Union member state pursuant to Article 51 of the General Data Protection Regulation; or (ii) the public authority governing data protection, which has supervisory authority and jurisdiction over Customer.
2. NATURE OF DATA PROCESSING
Each party agrees to process Personal Data received under the Agreement only for the purposes set forth in the Agreement. For the avoidance of doubt, the categories of Personal Data processed and the categories of data subjects subject to this DPA are described in Schedule A to this DPA.
3. COMPLIANCE WITH LAWS
The parties shall each comply with their respective obligations under all applicable Data Protection Requirements.
4. CUSTOMER OBLIGATIONS
4.1 Customer agrees to:
- determine the purposes and general means of GWL Creative Limited’s processing of Customer Personal Data in accordance with the Agreement; and
- comply with its protection, security and other obligations with respect to Customer Personal Data prescribed by Data Protection Requirements for data controllers.
4.2 Customer agrees to, at GWL Creative Limited’s request, designate to GWL Creative Limited a single point of contact (the “Master Admin”) responsible for:
- receiving and responding to data subject requests GWL Creative Limited receives from Customer data subjects relating to Customer Personal Data; and
- notifying GWL Creative Limited of Customer’s intended response to a data subject request relating to the access to or the rectification, erasure, restriction, portability, blocking or deletion of Customer Personal Data that GWL Creative Limited processes for Customer, and authorising GWL Creative Limited to fulfill such responses on behalf of Customer.
5. GWL Creative Limited OBLIGATIONS
5.1 Processing Requirements. GWL Creative Limited will:
Process Customer Personal Data
- only for the purpose of providing, supporting and improving GWL Creative Limited’s services (including to provide insights and other reporting), using appropriate technical and organisational security measures; and
- in compliance with the instructions received from Customer.
- Inform Customer promptly if, in GWL Creative Limited’s opinion, an instruction from Customer violates applicable Data Protection Requirements;
- If GWL Creative Limited is collecting Customer Personal Data from individuals on behalf of Customer, follow Customer’s instructions regarding such Customer Personal Data collection (including with regard to the provision of notice and exercise of choice);
Take commercially reasonable steps to ensure that
- persons employed by it, and
- other persons engaged to perform on GWL Creative Limited’s behalf comply with the terms of the Agreement;
- Ensure that its employees, authorised agents and any Subprocessors are required to comply with and acknowledge and respect the confidentiality of the Customer Personal Data, including after the end of their respective employment, contract or assignment;
If it intends to engage Subprocessors to help it satisfy its obligations in accordance with this DPA or to delegate all or part of the processing activities to such Subprocessors,
- exclusive of the Subprocessors GWL Creative Limited maintains, obtain the prior written consent of Customer to such subcontracting, such consent to not be unreasonably withheld;
- remain liable to Customer for the Subprocessors’ acts and omissions with regard to data protection where such Subprocessors act on GWL Creative Limited’s instructions; and
- enter into contractual arrangements with such Subprocessors binding them to provide the same level of data protection and information security to that provided for herein; and
- Upon request, provide Customer with a summary of GWL Creative Limited’s privacy and security policies.
5.2 Notice to Customer. GWL Creative Limited will inform Customer if GWL Creative Limited becomes aware of:
- Any non-compliance by GWL Creative Limited or its employees with Sections 5-8 of this DPA or the Data Protection Requirements relating to the protection of Customer Personal Data processed under this DPA;
- Any legally binding request for disclosure of Customer Personal Data by a law enforcement authority, unless GWL Creative Limited is otherwise forbidden by law to inform Customer, for example to preserve the confidentiality of an investigation by law enforcement authorities;
- Any notice, inquiry or investigation by a Supervisory Authority with respect to Customer Personal Data; or
- Any complaint or request (in particular, requests for access to rectification, erasure, restriction, portability, blocking or deletion of Customer Personal Data) received directly from data subjects of Customer. GWL Creative Limited will not respond to any such request without Customer’s prior written authorisation.
5.3 Assistance to Customer. GWL Creative Limited will provide reasonable assistance to Customer regarding:
- Any requests from Customer data subjects in respect of access to or the rectification, erasure, restriction, portability, blocking or deletion of Customer Personal Data that GWL Creative Limited processes for Customer. In the event that a data subject sends such a request directly to GWL Creative Limited, GWL Creative Limited will promptly send such request to Customer;
- The investigation of Personal Data Breaches and the notification to the Supervisory Authority and Customer’s data subjects regarding such Personal Data Breaches; and
- Where appropriate, the preparation of data protection impact assessments and, where necessary, carrying out consultations with any Supervisory Authority.
5.4 Required Processing. If GWL Creative Limited is required by Data Protection Requirements to process any Customer Personal Data for a reason other than providing the services described in the Agreement, GWL Creative Limited will inform Customer of this requirement in advance of any processing, unless GWL Creative Limited is legally prohibited from informing Customer of such processing (e.g., as a result of secrecy requirements that may exist under applicable EU member state laws).
5.5 Security. GWL Creative Limited will:
- Maintain appropriate organizational and technical security measures (which may include, with respect to personnel, facilities, hardware and software, storage and networks, access controls, monitoring and logging, vulnerability and breach detection, incident response, encryption of Customer Personal Data while in transit and at rest) designed to protect against unauthorised or accidental access, loss, alteration, disclosure or destruction of Customer Personal Data;
- Be responsible for the sufficiency of the security, privacy, and confidentiality safeguards of all GWL Creative Limited personnel with respect to Customer Personal Data and liable for any failure by such GWL Creative Limited personnel to meet the terms of this DPA;
- Take reasonable steps to confirm that all GWL Creative Limited personnel are protecting the security, privacy and confidentiality of Customer Personal Data consistent with the requirements of this DPA; and
- Notify Customer of any Personal Data Breach by GWL Creative Limited, its Subprocessors, or any other third-parties acting on GWL Creative Limited’s behalf without undue delay and in any event within 48 hours of becoming aware of a Personal Data Breach.
6. AUDIT, CERTIFICATION
6.1 Supervisory Authority Audit. If a Supervisory Authority requires an audit of the data processing facilities from which GWL Creative Limited processes Customer Personal Data in order to ascertain or monitor Customer’s compliance with Data Protection Requirements, GWL Creative Limited will cooperate with such audit. Customer is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time GWL Creative Limited expends for any such audit, in addition to the rates for services performed by GWL Creative Limited.
6.2 Audits. GWL Creative Limited will provide to Customer each year an opinion or Service Organisation Control report provided by an accredited, third-party audit firm under the Statement on Standards for Attestation Engagements (SSAE) No. 18 (“ SSAE 18 ”) (Reporting on Controls at a Service Organisation) or the International Standard on Assurance Engagements (ISAE) 3402 (“ ISAE 3402 ”) (Assurance Reports on Controls at a Service Organisation) standards applicable to the services under the Agreement (each such report, a “ Report ”). If a Report does not provide, in Customer’s reasonable judgment, sufficient information to confirm GWL Creative Limited’s compliance with the terms of this DPA, then Customer or an accredited third-party audit firm agreed to by both Customer and GWL Creative Limited may audit GWL Creative Limited’s compliance with the terms of this DPA during regular business hours, with reasonable advance notice to GWL Creative Limited and subject to reasonable confidentiality procedures. Customer is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time GWL Creative Limited expends for any such audit, in addition to the rates for services performed by GWL Creative Limited. Before the commencement of any such audit, Customer and GWL Creative Limited shall mutually agree upon the scope, timing, and duration of the audit. Customer shall promptly notify GWL Creative Limited with information regarding any non-compliance discovered during the course of an audit. Customer may not audit GWL Creative Limited more than once annually.
7. DATA TRANSFERS
For transfers of European Personal Data to GWL Creative Limited for processing by GWL Creative Limited in a jurisdiction other than a jurisdiction in the EU, the EEA, or the European Commission-approved countries providing ‘adequate’ data protection, GWL Creative Limited agrees it will
- provide at least the same level of privacy protection for European Personal Data as required under the U.S.-EU and U.S.-Swiss Privacy Shield frameworks; or
- use the form of the Controller-to-Processor SCCs available at ec.europa.eu .
If data transfers under Section 7 of this DPA rely on Controller-to-Processor SCCs to enable the lawful transfer of European Personal Data, as set forth in the preceding sentence, the parties agree that data subjects for whom a GWL Creative Limited entity processes European Personal Data are third-party beneficiaries under the Controller-to-Processor SCCs. If GWL Creative Limited is unable or becomes unable to comply with these requirements, then European Personal Data will be processed and used exclusively within the territory of a member state of the European Union and any movement of European Personal Data to a non-EU country requires the prior written consent of Customer. GWL Creative Limited shall promptly notify Customer of any inability by GWL Creative Limited to comply with the provisions of this Section 7.
8. DATA RETURN AND DELETION
The parties agree that on the termination of the data processing services or upon Customer’s reasonable request, GWL Creative Limited shall, and shall cause any Subprocessors to, at the choice of Customer, return all the Customer Personal Data and copies of such data to Customer or securely destroy them and demonstrate to the satisfaction of Customer that it has taken such measures, unless Data Protection Requirements prevent GWL Creative Limited from returning or destroying all or part of the Customer Personal Data disclosed. In such case, GWL Creative Limited agrees to preserve the confidentiality of the Customer Personal Data retained by it and that it will only actively process such Customer Personal Data after such date in order to comply with applicable laws. For clarity, GWL Creative Limited may continue to process Customer Personal Data that has been aggregated in a manner that does not identify individuals or customers to improve GWL Creative Limited’s systems and services.
9. CONTROLLER-TO-CONTROLLER SCENARIOS
Each party will, to the extent that it, along with the other party, acts as data controller, as the term is defined in applicable Data Protection Requirements, with respect to Personal Data, reasonably cooperate with the other party to enable the exercise of data protection rights as set forth in the General Data Protection Regulation and in other Data Protection Requirements. Where both parties each act as data controller with respect to Personal Data, and the transfer of data between the parties results in a transfer of European Personal Data to a jurisdiction other than a jurisdiction in the EU, the EEA, or the European Commission-approved countries providing ‘adequate’ data protection, each party agrees it will
- provide at least the same level of privacy protection for European Personal Data as required under the US-EU and US-Swiss Privacy Shield frameworks; or
- use the Controller-to-Controller SCCs, which are incorporated herein by reference.
If data transfers under this DPA rely on Controller-to-Controller SCCs to enable the lawful transfer of Personal Data, as set forth in the preceding sentence, the parties agree that the following terms apply:
- Data subjects for whom a Customer processes European Personal Data are third-party beneficiaries under the Controller-to-Controller SCCs;
- Schedule A to this DPA shall apply as Annex B of the Controller-to-Controller SCCs; and
- for purpose of Section II(h), the data importer will process the European Personal Data, at its option, in accordance with “the relevant provisions of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data.” The parties acknowledge and agree that each is acting independently as Data Controller with respect of Personal Information and the parties are not joint controllers as defined in the General Data Protection Regulation.
10. THIRD PARTY DATA PROCESSORS
Customer acknowledges that in the provision of some services (such as CRMs), GWL Creative Limited, on receipt of instructions from Customer, may transfer Customer Personal Data to and otherwise interact with third party data processors. Customer agrees that if and to the extent such transfers occur, Customer is responsible for entering into separate contractual arrangements with such third party data processors binding them to comply with obligations in accordance with Data Protection Requirements. For avoidance of doubt, such third party data processors are not Subprocessors.
This DPA shall remain in effect as long as GWL Creative Limited carries out Personal Data processing operations on behalf of Customer or until the termination of the GWL Creative Limited Contract (and all Personal Data has been returned or deleted in accordance with Section 8 above).
12. GOVERNING LAW, JURISDICTION, AND VENUE
Notwithstanding anything in the Agreement to the contrary, this DPA shall be governed by the laws of United Kingdom, and any action or proceeding related to this DPA (including those arising from non contractual disputes or claims) will be brought in London, United Kingdom.