GDPR Data Processing Agreement
This Data Processing Agreement reflects the requirements of the European Data Protection Regulation (“GDPR”) as it comes into effect on May 25, 2018. Brilliant´s products and services offered in the European Union are GDPR ready and this DPA provides you with the necessary documentation of this readiness.
This Data Processing Agreement (“DPA”) is an addendum to the Terms of Service ("Terms" or "Agreement") between Brilliant Gifts LLC (“Brilliant”) and the Client. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Client enters into this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the name and on behalf of its Authorized Affiliates (defined below).
The parties agree as follows:
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
“Authorized Affiliate” means any of Client Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.
“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.
“Controller” means an entity that determines the purposes and means of the processing of Personal Data.
“Client Data” means any data that Brilliant and/or its Affiliates processes on behalf of Client in the course of providing the Services under the Agreement.
“Data Protection Laws” means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
“EU Data Protection Law” means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after May 25, 2018, 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) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).
“Personal Data” means any Client Data relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Law.
“Privacy Shield” means the EU-US and Swiss-US Privacy Shield Frameworks, as administered by the U.S. Department of Commerce.
“Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision of 12 July 2016 pursuant to the Directive, details of which can be found at www.privacyshield.gov/eu-us-framework.
“Processor” means an entity that processes Personal Data on behalf of the Controller.
“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly.
“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 Personal Data.
“Services” means any product or service provided by Brilliant to Client pursuant to and as more particularly described in the Agreement.
“Sub-processor” means any Processor engaged by Brilliant or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any Brilliant Affiliate.
2. Scope and Applicability of this DPA
2.1 This DPA applies where and only to the extent that Brilliant processes Personal Data on behalf of the Client in the course of providing the Services and such Personal Data is subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.
2.2 Role of the Parties. As between Brilliant and Client, Client is the Controller of Personal Data and Brilliant shall process Personal Data only as a Processor on behalf of Client. Nothing in the Agreement or this DPA shall prevent Brilliant from using or sharing any data that Brilliant would otherwise collect and process independently of Client's use of the Services.
2.3 Client Obligations. Client agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to Brilliant; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Brilliant to process Personal Data and provide the Services pursuant to the Agreement and this DPA.
2.4 Brilliant Processing of Personal Data. As a Processor, Brilliant shall process Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; and (iii) to comply with other reasonable instructions provided by Client to the extent they are consistent with the terms of this Agreement and only in accordance with Client’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Client’s complete and final instructions to Brilliant in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Client and Brilliant.
2.5 Nature of the Data. Brilliant handles Client Data provided by Client. Such Client Data may contain special categories of data depending on how the Services are used by Client. The Client Data may be subject to the following process activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to Client; (ii) to provide customer and technical support to Client; and (iii) disclosures as required by law or otherwise set forth in the Agreement.
2.6 Brilliant Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Client acknowledges that Brilliant shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered personal data under Data Protection Laws, Brilliant is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.
3.1 Authorized Sub-processors. Client agrees that Brilliant may engage Sub-processors to process Personal Data on Client's behalf. A list of the Sub-processors currently engaged by Brilliant and authorized by Client is available upon request.
3.2 Sub-processor Obligations. Brilliant shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal 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 Brilliant to breach any of its obligations under this DPA.
3.3 Changes to Sub-processors. Brilliant shall provide Client reasonable advance notice (for which email shall suffice) if it adds or removes Sub-processors.
3.4 Objection to Sub-processors. Client may object in writing to Brilliant’s appointment of a new Sub-processor on reasonable grounds relating to data protection by notifying Brilliant promptly in writing within five (5) calendar days of receipt of Brilliant’s notice in accordance with Section 3.3. Such notice shall explain the reasonable grounds for the objection. In such event, the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If this is not possible, either party may terminate the applicable Services that cannot be provided by Brilliant without the use of the objected-to-new Sub-processor.
4.1 Security Measures. Brilliant shall implement and maintain appropriate technical and organizational security measures to protect Personal Data from Security Incidents and to preserve the security and confidentiality of the Personal Data, in accordance with Brilliant's security standards, available upon request.
4.2 Confidentiality of Processing. Brilliant shall ensure that any person who is authorized by Brilliant to process Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.3 Security Incident Response. Upon becoming aware of a Security Incident, Brilliant shall notify Client without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Client.
4.4 Updates to Security Measures. Client 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 result in the degradation of the overall security of the Services purchased by the Client.
5. Security Reports and Audits
5.1 Brilliant shall maintain records of its security standards. Upon Client's written request, Brilliant shall provide (on a confidential basis) documentation reasonably required by Client to verify Brilliant's compliance with this DPA. Brilliant shall further provide written responses (on a confidential basis) to all reasonable requests for information made by Client, including responses to information security and audit questionnaires, that Client (acting reasonably) considers necessary to confirm Brilliant's compliance with this DPA, provided that Client shall not exercise this right more than once per year.
6. International Transfers
6.1 Processing Locations. Brilliant stores and processes EU Data (defined below) in data centers located inside and outside the European Union. All other Client Data may be transferred and processed in the United States and anywhere in the world where Client, its Affiliates and/or its Sub-processors maintain data processing operations. Brilliant shall implement appropriate safeguards to protect the Personal Data, wherever it is processed, in accordance with the requirements of Data Protection Laws.
6.2 Transfer Mechanism: Notwithstanding Section 6.1, to the extent Brilliant processes or transfers (directly or via onward transfer) Personal Data under this DPA from the European Union, the European Economic Area and/or their member states and Switzerland (“EU Data”) in or to countries which do not ensure an adequate level of data protection within the meaning of applicable Data Protection Laws of the foregoing territories, the parties agree that Brilliant shall be deemed to provide appropriate safeguards for such data by virtue of Brilliant processing such data in compliance with the Privacy Shield Principles. Client hereby authorises any transfer of EU Data to, or access to EU Data from, such destinations outside the EU subject to any of these measures having been taken.
7. Return or Deletion of Data
7.1 Upon deactivation of the Services, all Personal Data shall be deleted, save that this requirement shall not apply to the extent Brilliant 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 such Personal Data Brilliant shall securely isolate and protect from any further processing, except to the extent required by applicable law.
8.1 To the extent that Client is unable to independently access the relevant Personal Data within the Services, Brilliant shall (at Client's expense) taking into account the nature of the processing, provide reasonable cooperation to assist Client by appropriate technical and organizational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to Brilliant, Brilliant shall not respond to such communication directly without Client's prior authorization, unless legally compelled to do so. If Brilliant is required to respond to such a request, Brilliant shall promptly notify Client and provide it with a copy of the request unless legally prohibited from doing so.
8.2 To the extent Brilliant is required under Data Protection Law, Brilliant shall (at Client's expense) provide reasonably requested information regarding Brilliant's processing of Personal Data under the Agreement to enable the Client to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
9.1 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
9.2 This DPA is a part of and incorporated into the Agreement so references to "Agreement" in the Agreement shall include this DPA.
9.3 In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.
9.4 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
Brilliant Gifts LLC