This Data Processing Addendum (“DPA”) is incorporated into, and is subject to the terms and conditions of, the Agreement between Brilliant Gifts LLC, doing business as Brilliant (“Brilliant”), and the customer entity that is a party to the Agreement as a client (“Customer”).
All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. For the avoidance of doubt, all references to the “Agreement” shall include this DPA, including the SCCs where applicable.
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with an entity.
“Agreement” means Brilliant’s Terms of Service, or other written or electronic agreement, which governs the provision of the Service to Customer, as such terms or agreement may be updated from time to time.
“Control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.
“Customer Data” means any personal data, personal information, or similar regulated information that Brilliant processes on behalf of Customer via the Service, as more particularly described in this DPA.
“Data Protection Laws” means all data protection and privacy laws and regulations applicable to a party’s processing of Customer Data under the Agreement, including, where applicable, European Data Protection Laws and Non-European Data Protection Laws.
“European Data Protection Laws” means all data protection and privacy laws and regulations applicable to Europe, including: (i) 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, the General Data Protection Regulation (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) applicable national implementations of (i) and (ii); (iv) the GDPR as it forms part of UK law by virtue of section 3 of the UK European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018, together, “UK Data Protection Laws”; and (v) the Swiss Federal Act on Data Protection of 25 September 2020, as amended, and its implementing ordinance (“Swiss FADP”).
“Europe” means, for purposes of this DPA, the European Economic Area and its member states (“EEA”), Switzerland, and the United Kingdom (“UK”).
“Non-European Data Protection Laws” means all data protection and privacy laws and regulations outside Europe that are applicable to a party’s processing of Customer Data under the Agreement, including, where applicable:
(i) U.S. state comprehensive consumer privacy laws and their implementing regulations, as amended from time to time, including the California Consumer Privacy Act, as amended by the California Privacy Rights Act, Cal. Civ. Code § 1798.100 et seq. and 11 CCR § 7000 et seq. (“CCPA”), the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, the Utah Consumer Privacy Act, the Oregon Consumer Privacy Act, the Texas Data Privacy and Security Act, the Delaware Personal Data Privacy Act, the Montana Consumer Data Privacy Act, the Iowa Consumer Data Protection Act, the Nebraska Data Privacy Act, the New Hampshire Privacy Act, the New Jersey Data Privacy Act, the Tennessee Information Protection Act, the Indiana Consumer Data Protection Act, the Kentucky Consumer Data Protection Act, the Rhode Island Data Transparency and Privacy Protection Act, the Maryland Online Data Privacy Act, and the Minnesota Consumer Data Privacy Act, in each case to the extent effective and applicable;
(ii) the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”);
(iii) the Brazilian General Data Protection Law, Federal Law No. 13,709/2018 (“LGPD”); and
(iv) the Privacy Act 1988 (Cth) of Australia, as amended (“Australian Privacy Law”).
“SCCs” means: (i) the standard contractual clauses between controllers and processors adopted by the European Commission in Implementing Decision (EU) 2021/914 of 4 June 2021, the “2021 Controller-to-Processor Clauses”; or (ii) the standard contractual clauses between processors adopted by the European Commission in Implementing Decision (EU) 2021/914 of 4 June 2021, the “2021 Processor-to-Processor Clauses”; as applicable in accordance with Section 6.3. The European Commission’s 2021 SCCs are the current transfer clauses adopted under Implementing Decision 2021/914.
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data on systems managed or otherwise controlled by Brilliant.
“Sensitive Data” means: (a) social security number, tax file number, passport number, driver’s license number, or similar identifier, or any portion thereof; (b) credit or debit card number, other than the truncated last four digits of a credit or debit card; (c) employment, financial, credit, genetic, biometric, or health information; (d) racial, ethnic, political, or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (e) account passwords; (f) precise geolocation data; (g) personal data or personal information of children; or (h) other information that falls within the definition of “special categories of data,” “sensitive personal information,” “sensitive data,” or similar terms under applicable Data Protection Laws.
“Service” means the products, services, websites, company stores, gifting programs, fulfillment services, technology platform, support, reporting, and related services provided by Brilliant to Customer under the Agreement.
“Subprocessor” means any processor, service provider, contractor, or similar third party engaged by Brilliant or its Affiliates to assist in fulfilling Brilliant’s obligations with respect to providing the Service pursuant to the Agreement or this DPA. Subprocessors may include third parties or Affiliates of Brilliant but shall exclude Brilliant employees, contractors, or consultants.
“UK Addendum” means the International Data Transfer Addendum, version B1.0, issued by the UK Information Commissioner’s Office under section 119A of the UK Data Protection Act 2018, as updated or amended from time to time. The ICO describes the UK Addendum as the mechanism that allows parties to rely on the EU SCCs for restricted transfers under the UK GDPR.
The terms “personal data,” “controller,” “data subject,” “processor,” and “processing” shall have the meanings given to them under applicable Data Protection Laws or, if not defined thereunder, the GDPR. The terms “process,” “processes,” and “processed,” with respect to any Customer Data, shall be interpreted accordingly.
If European Data Protection Laws or the LGPD apply to either party’s processing of Customer Data, the parties acknowledge and agree that with regard to the processing of Customer Data, Brilliant is a processor acting on behalf of Customer, whether Customer itself is a controller or processor.
If applicable U.S. State Privacy Laws apply to either party’s processing of Customer Data, the parties acknowledge and agree that with regard to the processing of Customer Data, Brilliant is a processor, service provider, or contractor acting on behalf of Customer, and Customer is the controller or business, as applicable.
For the avoidance of doubt, this DPA shall not apply to instances where Brilliant acts as a controller or business with respect to personal data or personal information, unless otherwise described in Annex C.
Brilliant shall process Customer Data, as further described in Annex A, only in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing (“Permitted Purposes”).
The parties agree that the Agreement, including this DPA, along with Customer’s configuration of or use of any settings, features, or options in the Service, as Customer may be able to modify from time to time, constitute Customer’s complete and final instructions to Brilliant in relation to the processing of Customer Data, including for purposes of the SCCs. Processing outside the scope of these instructions, if any, shall require prior written agreement between the parties.
Customer will not provide, submit, or cause to be provided or submitted Sensitive Data to Brilliant for processing under the Agreement unless the processing of such Sensitive Data is necessary for the Service, expressly supported by the applicable Service, and permitted under the Agreement.
Customer is responsible for providing all required notices and obtaining all required consents, authorizations, and lawful bases for the processing of any Sensitive Data.
Brilliant will process Sensitive Data only as necessary to provide the Service, in accordance with Customer’s instructions, or as otherwise permitted by applicable law. Brilliant will have no liability for Sensitive Data submitted to the Service in violation of this Section.
Customer represents and warrants that: (i) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Customer Data and any processing instructions it issues to Brilliant; and (ii) it has provided, and will continue to provide, all notices and has obtained, and will continue to obtain, all consents, authorizations, rights, and lawful bases necessary under Data Protection Laws for Brilliant to process Customer Data for the purposes described in the Agreement.
Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data.
Without prejudice to the generality of the foregoing, Customer agrees that it is responsible for complying with all laws, including Data Protection Laws, applicable to any campaigns, communications, gifting programs, or other content created, sent, or managed through the Service, including those relating to obtaining consents where required, the content of communications, and Customer’s communication deployment practices.
Customer will ensure that Brilliant’s processing of Customer Data in accordance with Customer’s instructions will not cause Brilliant to violate any applicable law, regulation, or rule, including Data Protection Laws.
Brilliant shall promptly notify Customer in writing, unless prohibited from doing so under applicable Data Protection Laws, if Brilliant becomes aware or believes that any data processing instruction from Customer violates applicable Data Protection Laws.
Where Customer acts as a processor on behalf of a third-party controller or other intermediary to the ultimate controller, Customer warrants that its processing instructions as set out in the Agreement and this DPA, including its authorizations to Brilliant for the appointment of Subprocessors in accordance with this DPA, have been authorized by the relevant controller.
Customer shall serve as the sole point of contact for Brilliant, and Brilliant need not interact directly with, provide notifications to, or seek authorization from any third-party controller other than through regular provision of the Service to the extent required under the Agreement. Customer shall be responsible for forwarding any notifications received under this DPA to the relevant controller, where appropriate.
Customer agrees that Brilliant may engage Subprocessors to process Customer Data on Customer’s behalf.
A current list of Subprocessors may be requested by emailing [email protected].
Brilliant shall notify Customer if it adds or removes Subprocessors at least ten (10) days prior to any such changes if Customer opts in to receive such notifications by emailing [email protected].
Brilliant shall: (i) enter into a written agreement with each Subprocessor containing data protection obligations that provide at least the same level of protection for Customer Data as those in this DPA, to the extent applicable to the nature of the service provided by such Subprocessor; and (ii) remain responsible for such Subprocessor’s compliance with the obligations of this DPA and for any acts or omissions of such Subprocessor that cause Brilliant to breach its obligations under this DPA.
Customer acknowledges and agrees that, where applicable, Brilliant fulfills its obligations under Clause 9 of the 2021 Controller-to-Processor Clauses and 2021 Processor-to-Processor Clauses, as applicable, by complying with this Section 3. Brilliant may be prevented from disclosing Subprocessor agreements to Customer due to confidentiality restrictions, but Brilliant shall, upon request, use reasonable efforts to provide Customer with relevant information it reasonably can in connection with Subprocessor agreements.
Should Customer choose to purchase On Demand Gifts, utilize one of Brilliant’s international fulfillment centers, or otherwise ship gift orders directly to recipients from a supplier, Customer agrees that any vendor who manages a gift order placed by Customer shall act as a Subprocessor for purposes of this DPA, and Customer consents to the engagement of such vendor as a Subprocessor.
Brilliant shall implement and maintain appropriate technical and organizational security measures that are designed to protect Customer Data from Security Incidents and designed to preserve the security and confidentiality of Customer Data in accordance with Brilliant’s security standards described in Annex B.
Brilliant shall ensure that any person who is authorized by Brilliant to process Customer Data, including its staff, agents, and subcontractors, shall be under an appropriate obligation of confidentiality, whether contractual or statutory.
Customer is responsible for reviewing the information made available by Brilliant relating to data security and making an independent determination as to whether the Service meets Customer’s requirements and legal obligations under Data Protection Laws.
Customer acknowledges that the Security Measures are subject to technical progress and development and that Brilliant may update or modify the Security Measures from time to time, provided that such updates and modifications do not materially degrade the overall security of the Service provided to Customer.
Upon becoming aware of a Security Incident, Brilliant shall: (i) notify Customer without undue delay, and where feasible, within forty-eight (48) hours of awareness; (ii) provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer; and (iii) promptly take reasonable steps to contain and investigate the Security Incident.
Brilliant’s notification of or response to a Security Incident under this Section 4.4 shall not be construed as an acknowledgment by Brilliant of any fault or liability with respect to the Security Incident.
Notwithstanding the above, Customer agrees that, except as provided by this DPA, Customer is responsible for its secure use of the Service, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Service, and taking appropriate steps to securely encrypt or back up any Customer Data uploaded to the Service.
Brilliant shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by Customer, in order to assess compliance with this DPA.
Customer acknowledges and agrees that it shall exercise its audit rights under this DPA, including this Section 5.1 and, where applicable, the SCCs, and any audit rights granted by Data Protection Laws, by instructing Brilliant to comply with the audit measures described in Sections 5.2 and 5.3 below.
Customer acknowledges that Brilliant may be audited by independent third-party auditors and internal auditors. Upon written request, Brilliant shall supply, on a confidential basis, a summary copy of its most current applicable audit report or security summary (“Report”) to Customer, so that Customer can verify Brilliant’s compliance with the audit standards against which it has been assessed and this DPA.
In addition to the Report, Brilliant shall respond to reasonable requests for information made by Customer to confirm Brilliant’s compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, by making additional information available regarding its information security program upon Customer’s written request to [email protected], provided that Customer shall not exercise this right more than once per calendar year unless required by Data Protection Laws, a regulator, or a Security Incident involving Customer Data.
Any audit, assessment, questionnaire, or information request must be reasonable in scope, subject to confidentiality obligations, limited to information relevant to Brilliant’s processing of Customer Data, and conducted in a manner that does not unreasonably interfere with Brilliant’s business operations or compromise the security, confidentiality, or privacy of Brilliant’s systems, data, trade secrets, personnel, vendors, Subprocessors, or other customers.
Subject to Sections 6.2 through 6.7, Customer acknowledges that Brilliant may transfer and process Customer Data to and in the United States and anywhere else in the world where Brilliant, its Affiliates, or its Subprocessors maintain data processing operations.
Brilliant shall at all times ensure that such transfers are made in compliance with the requirements of applicable Data Protection Laws and this DPA.
To the extent Brilliant is a recipient of Customer Data protected by Australian Privacy Law, the parties acknowledge and agree that Brilliant may transfer such Customer Data outside of Australia as permitted by the terms agreed upon by the parties and subject to Brilliant complying with this DPA and Australian Privacy Law.
To the extent Brilliant is a recipient of Customer Data protected by GDPR in a country outside of the EEA that is not recognized as providing an adequate level of protection for personal data, the parties agree to abide by and process such Customer Data in compliance with the SCCs, which shall be incorporated into and form an integral part of this DPA.
With respect to transfers to which UK Data Protection Laws apply, the SCCs shall apply and shall be deemed amended as specified by the UK Addendum.
The UK Addendum shall be deemed executed by the parties and incorporated into and form an integral part of this DPA. In addition: Tables 1 to 3 in Part 1 of the UK Addendum shall be deemed completed with the information set out in Annexes I and II of the relevant SCCs; and Table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting “neither party.” The UK Addendum version B1.0 has been in force since March 21, 2022.
With respect to transfers to which the Swiss FADP applies, the SCCs shall apply in accordance with Section 6.3 with the following modifications: (i) references to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss FADP; (ii) references to specific Articles of “Regulation (EU) 2016/679” shall be replaced with the equivalent article or section of the Swiss FADP; (iii) references to “EU,” “Union,” and “Member State law” shall be replaced with “Switzerland”; (iv) Clause 13(a) and Part C of Annex II shall be deleted; (v) references to the “competent supervisory authority” and “competent courts” shall be replaced with the “Swiss Federal Data Protection and Information Commissioner” and “relevant courts in Switzerland”; (vi) Clause 17 shall be replaced to state “The Clauses are governed by the laws of Switzerland”; and (vii) Clause 18 shall be replaced to state “Any dispute arising from these Clauses shall be resolved by the applicable courts of Switzerland. The parties agree to submit themselves to the jurisdiction of such courts.”
The parties agree that if Brilliant cannot ensure compliance with the SCCs, Brilliant shall promptly inform Customer of its inability to comply.
If Customer intends to suspend the transfer of European Data or terminate the affected parts of the Service, Customer shall first provide notice to Brilliant and provide Brilliant with a reasonable period of time to cure such non-compliance, during which time Brilliant and Customer shall reasonably cooperate to agree what additional safeguards or measures, if any, may be reasonably required.
Customer shall only be entitled to suspend the transfer of data or terminate the affected parts of the Service for non-compliance with the SCCs if Brilliant has not or cannot cure the non-compliance within a reasonable period.
To the extent Brilliant adopts an alternative lawful data transfer mechanism for the transfer of European Data not described in this DPA (“Alternative Transfer Mechanism”), the Alternative Transfer Mechanism shall apply instead of the transfer mechanisms described in this DPA, but only to the extent such Alternative Transfer Mechanism complies with applicable European Data Protection Laws and extends to the countries to which European Data is transferred.
In addition, if and to the extent that a court of competent jurisdiction or supervisory authority orders that the measures described in this DPA cannot be relied on to lawfully transfer European Data, Brilliant may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of European Data.
Upon termination or expiration of the Agreement, Brilliant shall, at Customer’s election, delete or return to Customer all Customer Data, including copies, in its possession or control, except that this requirement shall not apply to the extent Brilliant is required or permitted by applicable law to retain some or all of the Customer Data, or to Customer Data archived on backup systems.
Customer Data archived on backup systems shall be securely isolated, protected from any further processing, and eventually deleted in accordance with Brilliant’s deletion policies, except to the extent required or permitted by applicable law.
The parties agree that the certification of deletion of Customer Data described in Clause 8.5 and 16(d) of the 2021 Controller-to-Processor Clauses and 2021 Processor-to-Processor Clauses, as applicable, shall be provided by Brilliant to Customer only upon Customer’s written request.
As part of the Service, Brilliant may provide Customer with self-service features that Customer may use to retrieve, correct, delete, or restrict the use of Customer Data, which Customer may use to assist it in connection with its, or its third-party controller’s, obligations under Data Protection Laws with respect to responding to requests from data subjects via Customer’s account at no additional cost.
In addition, Brilliant shall, considering the nature of the processing, provide reasonable additional assistance to Customer to the extent possible to enable Customer, or its third-party controller, to comply with its data protection obligations with respect to data subject rights under Data Protection Laws.
If any such request is made to Brilliant directly, where Customer is identified or identifiable from the request, Brilliant shall not respond to such communication directly except as appropriate, for example to direct the data subject to contact Customer, or as legally required, without Customer’s prior authorization.
If Brilliant is required to respond to such a request, Brilliant shall, where Customer is identified or identifiable from the request, promptly notify Customer and provide Customer with a copy of the request unless Brilliant is legally prohibited from doing so.
For the avoidance of doubt, nothing in the Agreement, including this DPA, shall restrict or prevent Brilliant from responding to any data subject, consumer, regulator, or data protection authority request in relation to personal data or personal information for which Brilliant is a controller or business.
To the extent required under applicable Data Protection Laws, Brilliant shall, considering the nature of the processing and the information available to Brilliant, provide all reasonably requested information regarding the Service to enable Customer to carry out data protection impact assessments, privacy impact assessments, data protection assessments, or prior consultations with data protection authorities as required by Data Protection Laws.
Brilliant shall comply with the foregoing by: (i) complying with Section 5; (ii) providing the information contained in the Agreement, including this DPA; and (iii) if the foregoing subsections (i) and (ii) are insufficient for Customer to comply with such obligations, upon request, providing additional reasonable assistance at Customer’s expense.
To the extent Brilliant processes Customer Data originating from and protected by Data Protection Laws in one of the jurisdictions listed in Annex C, then the terms specified in Annex C with respect to the applicable jurisdiction or jurisdictions (“Jurisdiction-Specific Terms”) apply in addition to the terms of this DPA.
In the event of any conflict or ambiguity between the Jurisdiction-Specific Terms and any other terms of this DPA, the applicable Jurisdiction-Specific Terms will take precedence, but only to the extent of the Jurisdiction-Specific Terms’ applicability to Brilliant.
Each party’s and all of its Affiliates’ liability taken together in the aggregate arising out of or related to this DPA, including the SCCs, shall be subject to the exclusions and limitations of liability set forth in the Agreement.
Any claims made against Brilliant or its Affiliates under or in connection with this DPA, including where applicable the SCCs, shall be brought solely by the Customer entity that is a party to the Agreement.
In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise to the extent such limitation is prohibited by applicable Data Protection Laws.
This DPA shall remain in effect for as long as Brilliant carries out Customer Data processing operations on behalf of Customer or until termination of the Agreement and all Customer Data has been returned or deleted in accordance with Section 7 above.
The parties agree that this DPA shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service, unless the parties have executed a separate written data processing agreement, master services agreement, or privacy addendum that expressly supersedes this DPA.
In the event of any conflict or inconsistency between this DPA and the Agreement, the provisions of the following documents, in order of precedence, shall prevail: (i) SCCs; then (ii) this DPA; then (iii) the Agreement.
Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.
No one other than a party to this DPA, its successors, and permitted assigns shall have any right to enforce any of its terms, except to the extent otherwise required by applicable Data Protection Laws or the SCCs.
This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws or the SCCs.
The categories of data subjects whose personal data is processed may include:
Customer may upload, submit, or otherwise provide certain personal data to the Service, the extent of which is typically determined and controlled by Customer in its sole discretion, and may include:
Identification and contact data, such as name, address, email address, phone number, employer, job title, account credentials, account activity, order history, store activity, and communication preferences.
Identification and contact data, such as name, address, title, email address, phone number, delivery information, gift preferences, apparel sizing, dietary or shipping notes if provided, gift messages, order information, and delivery status.
IP addresses, device data, usage data, cookie data, online navigation data, approximate location data, browser data, log data, and interaction data.
Billing contact information, transaction identifiers, payment status, invoice details, and limited payment-card information such as card type, expiration date, and last four digits, where applicable.
Brilliant does not want to, nor does it intentionally, collect or process Sensitive Data in connection with the provision of the Service, except where processing is necessary for the Service, expressly supported by the applicable Service, and permitted under the Agreement.
Continuous and as determined by Customer.
Brilliant provides corporate gifting services, automation and management platforms, company stores, fulfillment services, shipping coordination, customer support, reporting, and related services, as more particularly described in the Agreement.
The subject matter of the data processing under this DPA is Customer Data.
Customer Data may be subject to the following processing activities:
Brilliant shall process Customer Data for the Permitted Purposes, including:
Brilliant will process Customer Data as outlined in Section 7 of this DPA.
The Security Measures applicable to the Service can be provided upon request and may be updated from time to time in accordance with Section 4.3 of this DPA.
At a minimum, Brilliant maintains reasonable administrative, technical, and physical safeguards designed to protect Customer Data from unauthorized access, loss, misuse, disclosure, alteration, and destruction, taking into account the nature of the Customer Data and the risks presented by the processing.
Customer may object in writing to Brilliant’s appointment of a new Subprocessor within five (5) calendar days of receiving notice in accordance with Section 3.1 of the DPA, provided that such objection is based on reasonable grounds relating to data protection.
In such event, the parties shall discuss such concerns in good faith with a view to achieving a commercially reasonable resolution.
If no commercially reasonable resolution can be reached, Brilliant will, at its sole discretion, either not appoint such Subprocessor or permit Customer to suspend or terminate the affected Service in accordance with the termination provisions in the Agreement without liability to either party, but without prejudice to any fees incurred by Customer prior to suspension or termination.
As a matter of general practice, Brilliant does not voluntarily provide government agencies or authorities, including law enforcement, with access to or information about Brilliant accounts, including Customer Data.
If Brilliant receives a compulsory request, whether through a subpoena, court order, search warrant, or other valid legal process, from any government agency or authority, including law enforcement, for access to or information about a Brilliant account, including Customer Data, belonging to a Customer whose primary contact information indicates the Customer is located in Europe, Brilliant shall: (i) review the legality of the request; (ii) inform the government agency that Brilliant is a processor of the data; (iii) attempt to redirect the agency to request the data directly from Customer; (iv) notify Customer via email sent to Customer’s primary contact email address of the request to allow Customer to seek a protective order or other appropriate remedy; and (v) provide the minimum amount of information permissible when responding to the agency or authority based on a reasonable interpretation of the request.
As part of this effort, Brilliant may provide Customer’s primary and billing contact information to the agency.
Brilliant shall not be required to comply with this paragraph if it is legally prohibited from doing so, or if Brilliant has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual, public safety, or Brilliant’s property, website, or Service. Where Brilliant is legally prohibited from notifying Customer of requests, it shall use reasonable efforts to obtain a waiver of the prohibition.
This section applies to Brilliant’s processing of Customer Data that is subject to applicable U.S. state comprehensive consumer privacy laws, including the CCPA and other applicable U.S. State Privacy Laws.
For this section only, and as applicable under U.S. State Privacy Laws:
a. “controller” includes “Business”;
b. “processor” includes “Service Provider” and “Contractor”;
c. “data subject” includes “Consumer”;
d. “personal data” includes “Personal Information”;
e. “processing” includes collecting, retaining, using, disclosing, sharing, selling, and other processing activities regulated by applicable U.S. State Privacy Laws; and
f. “U.S. State Privacy Laws” means the laws listed in the definition of Non-European Data Protection Laws, to the extent effective and applicable.
With respect to Customer Data processed by Brilliant on behalf of Customer under the Agreement, Customer is the controller or Business, and Brilliant is the processor, Service Provider, and/or Contractor, as applicable.
Customer discloses Customer Data to Brilliant for the limited and specified purposes of providing the Service and performing the Permitted Purposes described in the DPA and the Agreement, including, as applicable:
a. creating, hosting, operating, maintaining, and supporting company stores and gifting programs;
b. managing accounts, users, permissions, budgets, approvals, orders, and reporting;
c. sourcing, producing, customizing, packaging, fulfilling, shipping, and delivering products, gifts, kits, and related materials;
d. processing transactions, invoices, payments, credits, refunds, chargebacks, and related billing activities;
e. communicating with Customer, Users, Recipients, suppliers, fulfillment partners, carriers, and other parties as needed to provide the Service;
f. providing customer support and responding to inquiries;
g. maintaining, securing, debugging, protecting, testing, and improving the Service;
h. detecting, preventing, investigating, or responding to fraud, security incidents, misuse, unlawful activity, or violations of the Agreement;
i. maintaining business records and complying with legal, tax, accounting, audit, regulatory, and contractual obligations;
j. engaging Subprocessors and service providers to support the foregoing; and
k. other purposes described in the Agreement, Customer’s documented instructions, or otherwise permitted for processors, Service Providers, or Contractors under applicable U.S. State Privacy Laws.
Brilliant will:
a. process Customer Data only for the limited and specified purposes described in the DPA and Agreement, as instructed by Customer, as necessary to provide the Service, or as otherwise permitted for processors, Service Providers, or Contractors under applicable U.S. State Privacy Laws;
b. not Sell Customer Data;
c. not Share Customer Data, including for cross-context behavioral advertising, except as expressly instructed by Customer or otherwise permitted by applicable U.S. State Privacy Laws;
d. not retain, use, or disclose Customer Data for any purpose other than the purposes specified in the DPA and Agreement, or as otherwise permitted by applicable U.S. State Privacy Laws;
e. not retain, use, or disclose Customer Data for a commercial purpose other than the purposes specified in the DPA and Agreement, unless expressly permitted by applicable U.S. State Privacy Laws;
f. not retain, use, or disclose Customer Data outside the direct business relationship between Brilliant and Customer, unless expressly permitted by applicable U.S. State Privacy Laws;
g. not combine Customer Data with personal data or personal information received from or on behalf of another person, or collected from Brilliant’s own interaction with a Consumer, except as permitted by applicable U.S. State Privacy Laws;
h. comply with all applicable provisions of U.S. State Privacy Laws in connection with Brilliant’s processing of Customer Data;
i. provide the same level of privacy protection for Customer Data as required of Businesses or controllers under applicable U.S. State Privacy Laws;
j. maintain confidentiality of Customer Data and ensure that persons authorized to process Customer Data are subject to appropriate confidentiality obligations;
k. implement and maintain reasonable security procedures and practices appropriate to the nature of Customer Data;
l. notify Customer if Brilliant determines that it can no longer meet its obligations under applicable U.S. State Privacy Laws or this DPA; and
m. reasonably cooperate with Customer in responding to and complying with Consumer requests, opt-out requests, deletion requests, correction requests, access requests, portability requests, appeal requests, and other privacy-rights requests to the extent required by applicable U.S. State Privacy Laws and reasonably related to Brilliant’s processing of Customer Data.
Customer is responsible for:
a. determining whether the Service is appropriate for Customer’s intended processing activities;
b. providing all required notices and obtaining all required consents, authorizations, rights, and lawful bases necessary for Brilliant to process Customer Data in accordance with the Agreement and this DPA;
c. ensuring that Customer’s instructions comply with applicable U.S. State Privacy Laws; and
d. not instructing Brilliant to process Customer Data in a manner that would violate applicable U.S. State Privacy Laws or other applicable law.
Brilliant’s obligations regarding data subject requests under Section 8 of the DPA extend to Consumer rights requests under applicable U.S. State Privacy Laws, including requests to know, access, delete, correct, obtain a copy, opt out, limit, or appeal, to the extent applicable.
Customer will not provide Brilliant with Sensitive Data unless the processing is necessary for the Service, expressly supported by the Service, and permitted under the Agreement.
Customer is responsible for providing any notices and obtaining any consents required for the collection, use, disclosure, or processing of Sensitive Data.
Brilliant will process Sensitive Data only as necessary to provide the Service, as instructed by Customer, or as otherwise permitted by applicable law.
Where Subprocessors process Customer Data subject to U.S. State Privacy Laws, Brilliant will require such Subprocessors to enter into written agreements imposing privacy and security obligations at least as protective as those imposed on Brilliant under this DPA, to the extent applicable to the nature of the services provided by the Subprocessor.
Upon reasonable written request, Brilliant will make available information reasonably necessary for Customer to confirm Brilliant’s compliance with this DPA and applicable U.S. State Privacy Laws.
Customer may take reasonable and appropriate steps to help ensure that Brilliant processes Customer Data in a manner consistent with Customer’s obligations under applicable U.S. State Privacy Laws.
If Customer reasonably believes that Brilliant is processing Customer Data in an unauthorized manner, Customer may notify Brilliant, and the parties will cooperate in good faith to remediate the alleged unauthorized processing as required by applicable U.S. State Privacy Laws.
Any audit, assessment, or information request must be reasonable in scope, subject to confidentiality obligations, limited to information relevant to Brilliant’s processing of Customer Data, and conducted in a manner that does not unreasonably interfere with Brilliant’s business operations or compromise the security, confidentiality, or privacy of Brilliant’s systems, data, trade secrets, personnel, vendors, Subprocessors, or other customers.
Notwithstanding anything to the contrary, Brilliant may create or use deidentified or aggregated data derived from Customer Data to the extent permitted by applicable U.S. State Privacy Laws.
Brilliant will take reasonable measures to ensure that deidentified data cannot reasonably be associated with a Consumer or household, will maintain and use deidentified data in deidentified form, and will not attempt to reidentify deidentified data except as permitted by applicable law, including to test whether deidentification processes satisfy legal requirements.
The parties acknowledge that Customer discloses Customer Data to Brilliant for the limited and specified purposes described in the DPA and Agreement.
The parties do not intend for Customer’s disclosure of Customer Data to Brilliant to constitute a Sale or Sharing of Personal Information or Personal Data under applicable U.S. State Privacy Laws.
Brilliant certifies that it understands and will comply with the restrictions and obligations set forth in this DPA and applicable U.S. State Privacy Laws applicable to processors, Service Providers, and Contractors.
To the extent required by applicable U.S. State Privacy Laws and reasonably related to Brilliant’s processing of Customer Data on behalf of Customer, Brilliant will provide reasonable assistance to Customer in completing data protection assessments, privacy impact assessments, or similar assessments.
Unless prohibited by law or expressly included in the Service, Brilliant may charge Customer for reasonable costs incurred in providing assistance that requires substantial manual effort, custom engineering, or work outside the ordinary scope of the Service.
Nothing in this DPA prevents Brilliant from processing personal data or personal information for which Brilliant acts as a controller or Business, including information Brilliant collects directly from its own business contacts, prospective customers, website visitors, personnel, vendors, suppliers, fulfillment partners, or other individuals outside the scope of Brilliant’s processing on behalf of Customer.
Brilliant takes steps to ensure that Brilliant’s Subprocessors, as described in Section 3 of the DPA, are third parties under PIPEDA with whom Brilliant has entered into a written contract that includes terms substantially similar to this DPA. Brilliant conducts appropriate due diligence on its Subprocessors.
Brilliant will implement technical and organizational measures as set forth in Section 4 of the DPA.
To the extent the LGPD applies to Brilliant’s processing of Customer Data, the parties agree that:
To the extent Australian Privacy Law applies to Brilliant’s processing of Customer Data, Brilliant will: