Data Protection Addendum

In the course of providing the SparkPost service to our customers, SparkPost may process personal data on our customer’s behalf where such personal data is subject to data protection laws like GDPR and CCPA.  To this end, we offer a data protection addendum (DPA) as provided below. The DPA will only be legally binding and effective if: (1) it is executed here; and (2) you are SparkPost customer on the date it is fully executed.  Please note that because we have so many customers, we are not able to change the DPA for any particular customer.  However, if you have any questions about the DPA, please contact us at privacy@sparkpost.com.

  1. DEFINITIONS.
    1. Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
    2. Agreement” means the Terms of Use and the related Order, which together govern the provision and use of the Service.
    3. CCPA” means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder, in each case, as amended from time to time.
    4. Data Protection Laws” means all laws and regulations of any jurisdiction applicable to the confidentiality, privacy, security, or Processing of Personal Data under the Agreement, including, where applicable, the GDPR, the CCPA and all other laws and regulations relating to privacy, direct marketing or data protection.
    5. Data Controller” means an entity, alone or jointly with others, that determines the purposes and means of the Processing of Personal Data.
    6. Data Processor” means an entity that Processes Personal Data on behalf of a Data Controller.
    7. Data Subject” means the individual to whom Personal Data relates.
    8. Data Subject Request” means a Data Subject’s request to exercise that person’s rights under Data Protection Laws in respect of that person’s Personal Data, including, without limitation, the right to access, correct, amend, transfer, obtain a copy of, object to the processing of, block, delete, or opt out of the sale of such Personal Data.
    9. EEA” means, for the purposes of this DPA, the European Economic Area, United Kingdom and Switzerland.
    10. GDPR” Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation).
    11. Personal Data” means any information that identifies, relates to, describes, or is reasonably capable of being associated with an identified or identifiable natural person or household.
    12. Processing” means 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, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
    13. Regulator” means the European data protection authority or other regulatory, governmental or supervisory authority with authority over all or any part of (a) the provision or receipt of the Service; (b) the Processing of Personal Data in connection with the Service; or (c) SparkPost’s business or personnel relating to the Service.
    14. Security Incident” means any accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, access to, or encryption of Personal Data.
    15. Service” means any product or service provided by SparkPost to Customer pursuant to the Agreement.
    16. Standard Contractual Clauses” means the standard contractual clauses for the transfer of personal data to processors established in third countries in the form set out by European Commission Decision 2010/87/EU, the terms of which are attached hereto as Schedule 1 and incorporated herein.
    17. Sub-processor” means any Data Processor engaged by SparkPost to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or this DPA.
  2. RELATIONSHIP WITH THE AGREEMENT.
    1. The parties agree that this DPA will replace any existing data protection addendum or similar agreement the parties may have previously entered into in connection with the Services.
    2. Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect.  If there is any conflict between the terms of this DPA and the terms of the Agreement, this DPA will prevail to the extent of that conflict. In circumstances where SparkPost is relying on the Standard Contractual Clauses to transfer Personal Data, the Standard Contractual Clauses shall prevail in the event of a conflict with this DPA.
    3. Any claims brought under or in connection with this DPA will be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
    4. The parties agree that no limitations of liability set out in the Agreement will apply to any party’s liability to Data Subjects under the third-party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such liability is prohibited by Data Protection Laws.
    5. This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
    6. This DPA shall remain in effect so long as SparkPost Processes Personal Data, notwithstanding the expiration or termination of the Agreement.
  3. SCOPE OF THIS DPA.
    1. This DPA applies where and only to the extent that SparkPost Processes Personal Data that is subject to Data Protection Laws in the course of providing the Service pursuant to the Agreement.
  4. ROLES AND SCOPE OF PROCESSING.
    1. Role of the Parties.  As between SparkPost and Customer, Customer is the Data Controller of Personal Data, and SparkPost will process Personal Data only as a Data Processor acting on behalf of Customer.
    2. Customer Processing of Personal Data.  Customer agrees that it will comply with its obligations under applicable Data Protection Laws in respect of its Processing of Personal Data in connection with the Service and in respect of any documented Processing instructions it issues to SparkPost.
    3. SparkPost Processing of Personal Data.  Customer instructs SparkPost to Process Personal Data in accordance with the Agreement (including, for the avoidance of doubt, to perform its other obligations and exercise its rights under the Agreement) and to comply with Customer’s other reasonable instructions (e.g., via email) where such instructions are consistent with the Agreement.  SparkPost shall: (i) Process Personal Data only on Customer’s behalf and in accordance with Customer’s documented lawful instructions and shall treat Personal Data as confidential information subject to the confidentiality provisions of the Agreement; (ii) notify Customer in writing immediately if, in SparkPost’s reasonable opinion, SparkPost believes that any instruction given by Customer infringes Data Protection Laws; (iii) perform the Service and Process Personal Data in compliance with Data Protection Laws and the Agreement; (iv) promptly notify Customer of any noncompliance with this DPA.  The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to SparkPost in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) will require prior written agreement between Customer and SparkPost.
    4. Details of Data Processing.
      1. Subject matter: The subject matter of the data processing under this DPA is the Personal Data.
      2. Duration: As between SparkPost and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
      3. Purpose: The purpose of the data processing under this DPA is the provision of the Service to the Customer and the performance of SparkPost pursuant to the Agreement (including this DPA) or as otherwise agreed by the parties.
      4. Nature of the processing: SparkPost provides an email delivery, analytics, and intelligence service and other related services, as described in the Agreement.
      5. Categories of data subjects: Any individual accessing and/or using the Service through the Customer’s Account (“Users”); and any individual: (i) whose email address is included in the Customer’s recipient list(s); (ii) whose information is stored on or collected via the Service, or (iii) to whom Users send emails or otherwise engage or communicate with via the Service (collectively, “Recipients”).
      6. Types of Personal Data:
        1. Customer and Users: identification and contact data (name, address, title, contact details, username); financial information (account details, payment information); employment details (employer, job title, geographic location, area of responsibility);
        2. Recipients: identification and contact data (name, email address, and other demographic and segment data provided by Customer); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data).
    5. California Consumer Privacy Act.  SparkPost shall comply with the CCPA and treat all Personal Data subject to the CCPA in accordance with the provisions of the CCPA.  In addition to SparkPost’s confidentiality obligations in the Agreement, where SparkPost is acting as a “service provider” for purposes of the CCPA, SparkPost shall not sell, retain, use or disclose Personal Data for any purpose other than for the purpose of performing the Service specified in the Agreement, including selling, retaining, using renting disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing or by electronic or other means Personal Data for money or any other valuable consideration.
    6. Legitimate Interests.  Customer acknowledges that SparkPost will have a right to use and disclose data relating to the operation, support and/or use of the Service for its legitimate business purposes, such as billing, account management, technical support, and product development.  To the extent any such data is considered Personal Data under Data Protection Laws, SparkPost is the Data Controller of such data and accordingly will process such data in accordance with the SparkPost Privacy Policy and Data Protection Laws.
    7. Tracking Technologies.  Customer acknowledges that in connection with the performance of the Service, SparkPost employs the use of cookies, unique identifiers, web beacons and similar tracking technologies (“Tracking Technologies”).  Customer will maintain an appropriate lawful basis of processing as required by Data Protection Laws to enable SparkPost to deploy Tracking Technologies lawfully on, and collect data from, the devices of Recipients in accordance with and as described in the SparkPost Privacy Policy.
  5. SUBPROCESSING.
    1. Authorized Sub-processors.  Customer agrees that SparkPost may engage Sub-processors to process Customer Data on Customer’s behalf. the Sub-processors engaged by SparkPost and authorized by Customer as of the Effective Date are listed at: https://www.sparkpost.com/policies/subprocessors.
    2. Sub-processor Obligations.  SparkPost will: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Customer Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause SparkPost to breach any of its obligations under this DPA.
    3. Notification.  SparkPost will (i) provide an up-to-date list of the Sub-processors it has appointed upon written request from Customer; and (ii) notify Customer (for which email will suffice) if it adds a Sub-processors at least ten (10) days prior to any such changes.
    4. Objection.  Customer may object in writing to SparkPost’s appointment of a new Sub-processor within five (5) days of such notice, provided that such objection is based on reasonable grounds relating to data protection.  In such event, the parties will discuss such concerns in good faith with a view to achieving resolution.  If a resolution is not achieved within a reasonable amount of time, Customer may terminate the applicable Order(s) in respect only to the specific Service that cannot be provided by SparkPost without the use of the objected-to new Sub-processor, by providing written notice to SparkPost.
  6. SECURITY.
    1. Security Policy.  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, SparkPost shall implement and maintain appropriate technical and organizational security measures to protect Personal Data from Security Incidents and to preserve the security, integrity, availability, resiliency and confidentiality of the Personal Data and SparkPost systems used for Processing Personal Data.
    2. Updates to Security Measures.  Customer is responsible for reviewing the information made available by SparkPost relating to data security and making an independent determination as to whether such information meets Customer’s requirements and legal obligations under Data Protection Laws.  Customer acknowledges that the Security Policy is subject to technical progress and development and that SparkPost may update or modify the Security Policy from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Service purchased by the Customer.
    3. Customer Responsibilities.  Notwithstanding the above, Customer agrees that Customer is responsible for securing its Account authentication credentials in Customer’s custody or control and protecting the security of Personal Data when in transit to and from the Service to the extent such Personal Data is in Customer’s custody or control.
    4. SparkPost Personnel.  SparkPost shall ensure that its personnel engaged in Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements in respect of the Personal Data that survive termination of the personnel engagement.
  7. AUDIT REPORT AND AUDITS.
    1. Audit Report.  SparkPost shall be regularly audited against the SSAE-16 SOC II Type 2 controls (or equivalent) by independent third party auditors.  Upon request, SparkPost will supply a summary copy of its audit report(s) (“Audit Report”) to Customer, so that Customer can verify SparkPost’s compliance with the audit standards against which it has been assessed, and this DPA.  Such Audit Reports, as well as any conclusions or findings specified therein, are SparkPost’s Confidential Information.
    2. Audit.  SparkPost will make available to Customer all information necessary to demonstrate compliance with the obligations of Data Processors laid down in Article 28 of GDPR (“Article 28 Requirements”).  To this end, SparkPost will provide written responses to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires that are necessary to confirm SparkPost’s compliance with Article 28 Requirements, provided that Customer will not exercise this right more than once per year.  Such responses are SparkPost’s Confidential Information.  If SparkPost is unable to provide all information necessary to demonstrate compliance with Article 28 Requirements through the written responses, then SparkPost will allow for and contribute to audits, including inspections, conducted by the Customer or another auditor representing the Customer.  All information obtained from SparkPost during such audit or inspection is SparkPost’s Confidential Information.
  8. INTERNATIONAL TRANSFERS.
    1. Processing Locations.  SparkPost may transfer and process Customer Data anywhere in the world where SparkPost, its Affiliates or its Sub-processors maintain data processing operations.  SparkPost will at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.
    2. Standard Contractual Clauses.  To the extent that SparkPost Processes any Personal Data protected by GDPR under the Agreement and/or that originates from the EEA, SparkPost shall ensure that it is covered by a framework recognized by the relevant authorities or courts as providing an adequate level of protection (within the meaning of EU Data Protection Law) for any such Personal Data. If any Processing by SparkPost involves the export of such Personal Data to a country or territory outside the EEA, other than to a country or territory ensuring an adequate level of protection for the rights and freedoms of Data Subjects as determined by the European Commission, SparkPost agrees to protect such Personal Data in accordance with the requirements of the Standard Contractual Clauses, which are attached hereto and incorporated herein as Schedule 1.  If SparkPost is unable to comply with this requirement or if the relevant authorities or courts cease to recognize the Standard Contractual Clauses as providing an adequate level of protection, SparkPost will inform Customer and reasonably cooperate with Customer to ensure that any Processing of Personal Data complies with Data Protection Laws and any transfer restrictions thereunder, including through achieving alternative certifications, as applicable and necessary.
    3. Alternative Transfer Mechanism.  The parties agree that the data export solution identified in Section 8.2 (Standard Contractual Clauses) will not apply if and to the extent SparkPost adopts, or maintains, an alternative data export solution for the lawful transfer of Personal Data (as recognized under Data Protection Laws) outside of the EEA and which has been approved by Customer in writing prior to any transfer or other Processing of Personal Data (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism will apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which Personal Data is transferred).
  9. ADDITIONAL SECURITY.
    1. Confidentiality of Processing.  SparkPost will ensure that any person who is authorized by SparkPost to process Personal Data (including its staff, agents and subcontractors) will be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
    2. Security Incident Response and Notification.  Upon becoming aware of a Security Incident, SparkPost will notify Customer without undue delay and will provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
  10. RETURN OR DELETION OF DATA.
    1. Upon termination or expiration of the Agreement, SparkPost will (at Customer’s election) delete or return to Customer all Personal Data (including copies) in its possession or control, save that this requirement will not apply to the extent SparkPost is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which Personal Data SparkPost will securely isolate and protect from any further processing, except to the extent required by applicable law.
  11. COOPERATION.
    1. Indemnification.  Both parties agree to defend, indemnify, and hold harmless the other (including its directors, officers, employees and agents) from and against any third party claim (including from governmental authorities and Recipients) and related fees and expenses (including reasonable attorney’s fees) arising out of its actual or alleged breach of this DPA.
    2. Data Subject Requests.  The Service provides Customer with a number of controls that Customer may use to retrieve, correct, delete, or restrict Customer Data, which Customer may use to assist it in connection with its obligations under Data Protection Laws including, for example, its obligations relating to responding to Data Subject Requests.  To the extent Customer is unable to independently access the relevant Customer Data within the Service, SparkPost will provide reasonable cooperation to assist Customer to timely respond to any Data Subject Request relating to the processing of Personal Data under the Agreement within any deadlines imposed by Data Protection Laws.  In the event any such request is made directly to SparkPost, SparkPost shall notify Customer in writing of such request promptly upon receipt thereof.
    3. Records of Processing.  Upon request from Customer, SparkPost will make available in a timely manner such information as is required by Customer to demonstrate SparkPost’s compliance with its obligations under Data Protection Laws and under this DPA.
    4. Government Requests.  If a law enforcement agency sends SparkPost a demand for Personal Data (for example, through a subpoena or court order), SparkPost will attempt to redirect the law enforcement agency to request that data directly from Customer.  As part of this effort, SparkPost may provide Customer’s basic contact information to the law enforcement agency.  If compelled to disclose Customer Data to a law enforcement agency, then SparkPost will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless SparkPost is legally prohibited from doing so.
    5. Data Protection Impact Assessments.  To the extent SparkPost is required under applicable Data Protection Laws, SparkPost will provide reasonably requested information regarding the Service to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law or pursuant to Articles 35 and 36 or GDPR, respectively.
    6. Certification.  SparkPost and Customer certify that they understand and will comply with the obligations and restrictions set forth in this DPA and the Agreement.

***

SCHEDULE 1

STANDARD CONTRACTUAL CLAUSES

 

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

Customer

(the data exporter)

and

SparkPost

(the data importer)
each a “party”; together “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 clause
  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.

Clause 10

Variation of the contract

 

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses 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 clause 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.
  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.

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APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses

Data exporter 

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

A customer of data importer’s SparkPost Services (as defined below)

Data importer

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

A provider of email delivery, analytics, and consulting services (“SparkPost Services”)

Data subjects

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

Any natural person accessing and/or using the SparkPost Service through the data exporter’s SparkPost account (“Users”)

Any natural person: (i) whose email address is included in the data exporter’s recipient list(s); (ii) whose information is stored on or collected via the SparkPost Service, or (iii) to whom Users send emails or otherwise engage or communicate with via the SparkPost Service (collectively, “Recipients”)

Categories of data

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

Users: identification and contact information (name, address, title, contact details, username); financial information (account details, payment information); employment details (employer, job title, geographic location, area of responsibility)

Recipients: identification and contact information (name, email address, and other demographic and segment data provided by Customer); email information (subject line, message body, attachments); IT information (IP addresses, engagement data, location data, browser 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):

The provision of the SparkPost Services to data exporter and the performance of data importer pursuant to the agreement regarding the SparkPost Services (or as otherwise agreed by the parties in writing).

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APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses

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

Data importer will maintain a written and comprehensive information security program, which includes appropriate physical, technical, and administrative controls to protect the security, integrity, confidentiality, and availability of Personal Data, including without limitation, protecting Personal Data against any unauthorized or unlawful acquisition, access, use, disclosure, or destruction.  

If the parties have executed a data security exhibit or similar agreement, data importer will comply with the physical, technical, and administrative controls set forth therein.  

Data importer will not materially reduce the commitments, protections or overall level of security provided to data exporter as described herein.

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v1.2 September 29, 2020

Previous version (v1.1 May 14, 2019)