The customer agreeing to these terms (“Customer”) has entered into an agreement with Tapcart Inc. (“Tapcart”) under which Tapcart has agreed to provide services to Customer (as amended from time to time, the “Agreement“).
This Data Protection Addendum, including its attachments (the Addendum) will be effective and replace any previously applicable data processing and security terms as of the Addendum Effective Date (as defined below). This Addendum forms part of the Agreement and consists of (a) the main body of the Addendum; (b) Attachment 1 (Subject Matter and Details of the Data Processing); (c) Attachment 2 (Security Measures); (d) Attachment 3 (Standard Contractual Clauses), including Appendices 1 and 2 thereto.
For purposes of this Addendum, the terms below shall have the meanings set forth below. Capitalized terms that are used but not otherwise defined in this Addendum shall have the meanings set forth in the Agreement.
1.1 “Addendum Effective Date” means, as applicable, (a) 25 May 2018, if the parties agreed to this Addendum prior to or on such date; or (b) the date on which the parties agreed to this Addendum, if such date is after 25 May 2018.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
1.3 “Audit Reports” has the meaning given in Section 5.4.4.
1.4 “Customer Personal Data” means any personal data contained within the data provided to or accessed by Tapcart by or on behalf of Customer or Customer end users in connection with the Services.
1.5 “EEA” means the European Economic Area.
1.6 “EU” means the European Union.
1.7 “European Data Protection Legislation” means the GDPR and other data protection laws of the EU, its Member States, and the United Kingdom, applicable to the processing of Customer Personal Data under the Agreement.
1.8 “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
1.9 “Information Security Incident” means a breach of Tapcart’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data in Tapcart’s possession, custody or control. “Information Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
1.10 “Model Contract Clauses” or “MCCs” mean the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
1.11 “Security Documentation” means all documents and information made available by Tapcart under Section 5.4.1 (Reviews of Security Documentation).
1.12 “Security Measures” has the meaning given in Section 5.1.1 (Tapcart’s Security Measures).
1.13 “Services” means the services and/or products to be provided by Tapcart to Customer under the Agreement.
1.14 “Subprocessors” means third parties authorized under this Addendum to process Customer Personal Data in relation to the Services.
1.15 “Term” means the period from the Addendum Effective Date until the end of Tapcart’s provision of the Services.
1.16 “Third Party Subprocessors” has the meaning given in Section 9 (Subprocessors).
1.17 “Transfer Solution” means the Model Contract Clauses or another solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
1.18 The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Addendum have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses.
2. Duration of Addendum
This Addendum will take effect on the Addendum Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, Tapcart’s deletion of all Customer Personal Data as described in this Addendum.
3. Processing of Data
3.1 Roles and Regulatory Compliance; Authorization.
3.1.1 Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
(a) the subject matter and details of the processing are described in Attachment 1;
(b) Tapcart is a processor of that Customer Personal Data under the European Data Protection Legislation;
(c) Customer is a controller or processor, as applicable, of that Customer Personal Data under European Data Protection Legislation; and
(d) Each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
3.1.2 Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to Tapcart that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of Tapcart as another processor, have been authorized by the relevant controller.
3.2 Scope of Processing.
3.2.1 Customer’s Instructions. By entering into this Addendum, Customer instructs Tapcart to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorized by the Agreement, including this Addendum; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by Tapcart as constituting instructions for purposes of this Addendum.
3.2.2 Tapcart’s Compliance with Instructions. Tapcart will only process Customer Personal Data in accordance with Customer’s instructions described in Section 3.2.1 (including with regard to data transfers) unless European Data Protection Legislation to which Tapcart is subject requires other processing of Customer Personal Data by Tapcart, in which case Tapcart will notify Customer (unless that law prohibits Tapcart from doing so on important grounds of public interest).
4. Data Deletion
4.1 Deletion on Termination. On expiry of the Term, Customer instructs Tapcart to delete all Customer Personal Data (including existing copies) from Tapcart’s systems in accordance with applicable law as soon as reasonably practicable but no later than 180 days from the date of request, unless applicable law requires otherwise.
5. Data Security
5.1 Tapcart’s Security Measures, Controls and Assistance.
5.1.1 Tapcart’s Security Measures. Tapcart will implement and maintain technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data as described in Attachment 2 (the “Security Measures“). Tapcart may update or modify the Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.
5.1.2 Security Compliance by Tapcart Staff. Tapcart will grant access to Customer Personal Data only to employees, contractors and Subprocessors who need such access for the scope of their performance, and are subject to appropriate confidentiality arrangements.
5.1.3 Tapcart’s Security Assistance. Tapcart will (taking into account the nature of the processing of Customer Personal Data and the information available to Tapcart) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under European Data Protection Legislation, including Articles 32 to 34 (inclusive) of the GDPR, by:
(a) implementing and maintaining the Security Measures in accordance with Section 5.1.1 (Tapcart’s Security Measures);
(b) complying with the terms of Section 5.2 (Information Security Incidents); and
(c) providing Customer with the Security Documentation in accordance with Section 5.4.1 (Reviews of Security Documentation) and the Agreement, including this Addendum.
5.2 Information Security Incidents
5.2.1 Information Security Incident Notification. If Tapcart becomes aware of an Information Security Incident, Tapcart will: (a) notify Customer of the Information Security Incident without undue delay after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the case of such Information Security Incident, minimize harm and prevent a recurrence.
5.2.2 Details of Information Security Incident. Notifications made pursuant to this Section 5.2 (Information Security Incidents) will describe, to the extent possible, details of the Information Security Incident, including steps taken to mitigate the potential risks and steps Tapcart recommends Customer take to address the Information Security Incident.
5.2.3 Notification. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Information Security Incident(s).
5.2.4 No Acknowledgement of Fault by Tapcart. Tapcart’s notification of or response to an Information Security Incident under this Section 5.2 (Information Security Incidents) will not be construed as an acknowledgement by Tapcart of any fault or liability with respect to the Information Security Incident.
5.3 Customer’s Security Responsibilities and Assessment.
5.3.1 Customer’s Security Responsibilities. Customer agrees that, without prejudice to Tapcart’s obligations under Section 5.1 (Tapcart’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents):
(a) Customer is solely responsible for its use of the Services, including:
(i) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data;
(ii) securing the account authentication credentials, systems and devices Customer uses to access the Services;
(iii) securing Customer’s systems and devices Tapcart uses to provide the Services; and
(iv) backing up its Customer Personal Data; and
(b) Tapcart has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of Tapcart’s and its Subprocessors’ systems (for example, offline or on-premises storage).
5.3.2 Customer’s Security Assessment.
(a) Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures and Tapcart’s commitments under this Section 5 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation.
(b) Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Tapcart as set out in Section 5.1.1 (Tapcart’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Personal Data.
5.4 Reviews and Audits of Compliance
5.4.1 Customer may audit Tapcart’s compliance with its obligations under this Addendum up to once per year. In addition, to the extent required by European Data Protection Legislation, including where mandated by Customer’s supervisory authority, Customer or Customer’s supervisory authority may perform more frequent audits (including inspections). Tapcart will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to the Services.
5.4.2 If a third party is to conduct the audit, Tapcart may object to the auditor if the auditor is, in Tapcart’s reasonable opinion, not suitably qualified or independent, a competitor of Tapcart, or otherwise manifestly unsuitable. Such objection by Tapcart will require Customer to appoint another auditor or conduct the audit itself.
5.4.3 To request an audit, Customer must submit a detailed proposed audit plan to email@example.com at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Tapcart will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Tapcart security, privacy, employment or other relevant policies). Tapcart will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 shall require Tapcart to breach any duties of confidentiality.
5.4.4 If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and Tapcart confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.
5.4.5 The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and Tapcart’s health and safety or other relevant policies, and may not unreasonably interfere with Tapcart business activities.
5.4.6 Customer will promptly notify Tapcart of any non-compliance discovered during the course of an audit and provide Tapcart any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by European Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Addendum. The audit reports are Confidential Information of the parties under the terms of the Agreement.
5.4.7 Any audits are at Customer’s expense. Customer shall reimburse Tapcart for any time expended by Tapcart or its Third Party Subprocessors in connection with any audits or inspections under this Section 5.4 at Tapcart’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
5.4.8 The parties agree that this Section 5.4 shall satisfy Tapcart’s obligations under the audit requirements of the Model Contractual Clauses applied to Data Importer under Clause 5(f) and to any Sub-processors under Clause 11 and Clause 12(2).
6. Impact Assessments and Consultations
Tapcart will (taking into account the nature of the processing and the information available to Tapcart) reasonably assist Customer in complying with its obligations under European Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:
6.1 Making available for review copies of the Audit Reports or other documentation describing relevant aspects of Tapcart’s information security program and the security measures applied in connection therewith; and
6.2 providing the information contained in the Agreement including this Addendum.
7. Data Subject Rights
7.1 Customer’s Responsibility for Requests. During the Term, if Tapcart receives any request from a data subject in relation to Customer Personal Data, Tapcart will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request.
7.2 Tapcart’s Data Subject Request Assistance. Tapcart will (taking into account the nature of the processing of Customer Personal Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to fulfil its obligation under European Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in in Chapter III of the GDPR. Customer shall reimburse Tapcart for any such assistance beyond providing self-service features included as part of the Services at Tapcart’s then-current professional services rates, which shall be made available to Customer upon request.
8. Data Transfers
8.1 Data Storage and Processing Facilities. Tapcart may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Customer Personal Data anywhere Tapcart or its Subprocessors maintains facilities.
8.2 Transfers of Data Out of the EEA.
8.2.1 Tapcart’s Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 8.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA or Switzerland, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), Tapcart will make such transfers in accordance with a Transfer Solution, and make information available to Customer about such Transfer Solution upon request.
8.2.2 Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that if under European Data Protection Legislation Tapcart reasonably requires Customer to enter into Model Contract Clauses or use another Transfer Solution offered by Tapcart, and reasonably requests that Customer take any action (which may include execution of documents) required to give full effect to such solution, Customer will do so.
8.3 Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Model Contract Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), Tapcart will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer’s Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Model Contract Clauses. For the purposes of the Model Contract Clauses, Customer and Tapcart agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities and (ii) Tapcart or its relevant Affiliate will act on its own behalf and/or on behalf of Tapcart’s Affiliates as the data importers.
9.1 Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Tapcart’s Affiliates as Subprocessors. In addition, Customer generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If Customer has entered into Model Contract Clauses as described in Section 9.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting by Tapcart of the processing of Customer Personal Data if such consent is required under the Model Contract Clauses.
9.2 Information about Subprocessors. A list of Subprocessors as of 25 May 2018 (as may be updated by Tapcart from time to time in accordance with this Addendum) is below:
9.3 Requirements for Subprocessor Engagement. When engaging any Subprocessor, Tapcart will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this Addendum) with respect to the protection of Customer Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. Tapcart shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
9.4 Opportunity to Object to Subprocessor Changes.
When any new Third Party Subprocessor is engaged during the Term, Tapcart will, at least 30 days before the new Third Party Subprocessor processes any Customer Personal Data, notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform).
Customer may object to any new Third Party Subprocessor by providing written notice to Tapcart within ten (10) business days of being informed of the engagement of the Third Party Subprocessor as described above. In the event Customer objects to a new Third Party Subprocessor, Customer and Tapcart will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to Tapcart.
10. Processing Records
10.1 Tapcart’s Processing Records. Customer acknowledges that Tapcart is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Tapcart is acting and, where applicable, of such processor’s or controller’s local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to Tapcart, and will ensure that all information provided is kept accurate and up-to-date.
11.1 Liability Cap. The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with the Agreement, this Addendum, and the Model Contract Clauses if entered into as described in Section 8.2 (Transfers of Data Out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).
11.2 Liability Cap Exclusions. Nothing in Section 11.1 (Liability Cap) will affect any party’s liability to data subjects under the third party beneficiary provisions of the Model Contract Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation.
12. Third Party Beneficiary
Notwithstanding anything to the contrary in the Agreement, where Tapcart is not a party to the Agreement, Tapcart will be a third party beneficiary of Section 5.4 (Reviews and Audits of Compliance), Section 9.1 (Consent to Subprocessor Engagement) and Section 11 (Liability) of this Addendum.
Customer acknowledges and agrees that Tapcart may create and derive from processing related to the Services anonymized and/or aggregated data that does not identify Customer or any natural person, and use, publicize or share with third parties such data to improve Tapcart’s products and services and for its other legitimate business purposes.
Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Tapcart to Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to Tapcart’s primary points of contact with Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.
15. Effect of These Terms
Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.
Attachment 1 – Subject Matter and Details of the Data Processing
Subject Matter: Tapcart’s provision of the Services to Customer.
Duration of the Processing: The Term plus the period from the expiry of the Term until deletion of all Customer Personal Data by Tapcart in accordance with the Addendum.
Nature and Purpose of the Processing: Tapcart will process Customer Personal Data for the purposes of providing the Services to Customer in accordance with the Addendum.
Categories of Data: Data relating to individuals provided to Tapcart in connection with the Services, by (or at the direction of) Customer.
Attachment 2 – Security Measures
As from the Addendum Effective Date, Tapcart will implement and maintain the security measures set out in this Attachment 2. Tapcart may update or modify such Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.
1) Organizational management and dedicated staff responsible for the development, implementation and maintenance of Tapcart’s information security program.
2) Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Tapcart’s organization, monitoring and maintaining compliance with Tapcart’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
3) Data security controls which include at a minimum, but may not be limited to, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available and industry standard encryption technologies for Personal Data that is:
a) transmitted over public networks (i.e. the Internet) or when transmitted wirelessly; or
b) at rest or stored on portable or removable media (i.e. laptop computers, CD/DVD, USB drives, back-up tapes).
4) Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know and least privilege basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access promptly when employment terminates or changes in job functions occur).
5) Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that Tapcart’s passwords that are assigned to its employees: (i) be at least eight (8) characters in length, (ii) not be stored in readable format on Tapcart’s computer systems; (iii) must be changed every ninety (90) days; must have defined complexity; (v) must have a history threshold to prevent reuse of recent passwords; and (vi) newly issued passwords must be changed after first use.
6) System audit or event logging and related monitoring procedures to proactively record user access and system activity for routine review.
7) Physical and environmental security of data center, server room facilities and other areas containing Personal Data designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of Tapcart facilities, and (iii) guard against environmental hazards such as heat, fire and water damage.
8) Operational procedures and controls to provide for configuration, monitoring and maintenance of technology and information systems according to prescribed internal and adopted industry standards, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from Tapcart’s possession.
9) Change management procedures and tracking mechanisms designed to test, approve and monitor all changes to Tapcart’s technology and information assets.
10) Incident / problem management procedures design to allow Tapcart to investigate, respond to, mitigate and notify of events related to Tapcart’s technology and information assets.
11) Network security controls that provide for the use of enterprise firewalls and layered DMZ architectures, and intrusion detection systems and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
12) Vulnerability assessment, patch management and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
13) Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disasters.