This Ai Media Group Data Processing Agreement and its Annexes (“DPA”) reflects the parties’ agreement with respect to the Processing of Personal Data by us on behalf of you in connection with the Ai Media Group Subscription Services under the Ai Media Group Customer Terms of Service between you and us (also referred to in this DPA as the “Agreement”).
This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement, an Order or an executed amendment to the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.
We update these terms from time to time. If you have an active Ai Media Group subscription, we will let you know when we do via email (if you have subscribed to receive email notifications via the link in our Master Terms) or via in-app notification. You can find archived versions of the DPA here.
The term of this DPA will follow the term of the Agreement. Terms not otherwise defined in this DPA will have the meaning as set forth in the Agreement.
This agreement is dated [DATE] (the Effective Date)
PARTIES
(1) [FULL CUSTOMER COMPANY NAME] incorporated and registered in [ ] with company number [NUMBER] whose registered office is at REGISTERED OFFICE ADDRESS (Customer)
(2) AI MEDIA GROUP, LLC, a Delaware limited liability company with principal offices located at 1359 Broadway, 3rd Floor, New York, NY 10018 (Ai Media Group)
BACKGROUND
(A) The Customer and Ai Media Group entered into the Ai Media Group Customer Terms of Service Agreement dated [_____](Terms of Service Agreement) that may require Ai Media Group to process Personal Data on behalf of the Customer.
(B) This Data Processing Agreement (Agreement) sets out the additional terms, requirements and conditions on which Ai Media Group will process Personal Data when providing services under the Terms of Service Agreement pursuant to an Internet Advertising Order placed by the Customer. This Agreement contains the mandatory clauses applicable to Personal Data subject to and required by:
(a) Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) (EU GDPR) for contracts between controllers and processors;
(b) Article 28(3) of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR) for contracts between controllers and processors
AGREED TERMS
Applicable Data Protection Law means the data protection and privacy law, if it exists on the Effective Date of this Agreement, governing the processing, storage, transfer or other use of Personal Data and privacy of certain individuals including the California Data Privacy Legislation (as applicable to Personal Data of individuals located in California under certain circumstances), the European Data Protection Legislation (as applicable to Personal Data of individuals located in the EU), and the UK GDPR (as applicable to Personal Data of individuals located in the UK), and its associated regulations, if and when in force from time to time.
Business Purposes means the services to be provided by Ai Media Group to the Customer as described in the Terms of Service Agreement and any other purpose specifically identified in Schedule 1.
California Data Privacy Legislation means the California Consumer Privacy Act (California Civil Code Sec. 1798.100 et seq., also known as the California Consumer Privacy Act of 2018), the California Privacy Rights Act (California Civil Code Sec. 1798.120 et seq., also known as the California Privacy Rights Act of 2020, in effect beginning January 1, 2023), and its associated regulations, if and when in force from time to time.
Controller: has the meaning given to it in section 6, DPA 2018.
European Data Protection Legislation means:
(i) all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and
(ii) all applicable data protection and privacy legislation in force from time to time in the EU including 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) (EU GDPR); and Directive 2002/58/EC concerning the Processing of Personal Data and the protection of privacy in the electronic communications sector;
Data Subject: the identified or identifiable living individual to whom the Personal Data relates.
EEA means the European Economic Area.
Personal Data means any information relating to an identified or identifiable living individual that is processed by Ai Media Group on behalf of the Customer as a result of, or in connection with, the provision of the services under the Terms of Service Agreement ; an identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.
Processing, processes, processed, process means any activity that involves the use of the Personal Data. It includes, but is not limited to, any operation or set of operations which is performed on the Personal Data or on sets of the Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring the Personal Data to third parties.
Personal Data Breach means a breach of security leading to the accidental, unauthorised or unlawful destruction, loss, alteration, disclosure of, or access to, the Personal Data.
Processor means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller.
Records means has the meaning given to it in Clause 12.
Standard Contractual Clauses (SCC) means the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU, a completed copy of which comprises Schedule 2 or such alternative clauses as may be approved by the European Commission from time to time. The SCC shall only apply to the extent that the European Data Protection Legislation governs any Personal Data.
Term means this Agreement’s term as defined in Clause 10.
UK GDPR means has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
1.2 This Agreement is subject to the terms of the Terms of Service Agreement, and is incorporated into the Terms of Service Agreement. Interpretations and defined terms set forth in the Terms of Service Agreement apply to the interpretation of this Agreement.
1.3 The Schedules and Appendixes form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules and Appendixes.
1.4 A reference to writing or written includes email.
1.5 In the case of conflict or ambiguity between:
(a) any provision contained in the body of this Agreement and any provision contained in the Appendixes, the provision in the body of this Agreement will prevail;
(b) the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in the Appendixes, the provision contained in the Appendixes will prevail;
(c) any of the provisions of this Agreement and the provisions of the Terms of Service Agreement, the provisions of this Agreement will prevail; and
(d) if the European Data Protection Legislation is applicable, any of the provisions of this Agreement and any executed SCC, the provisions of the executed SCC will prevail.
3.3 Ai Media Group will maintain the confidentiality of the Personal Data and will not disclose the Personal Data to third parties unless the Customer or this Agreement specifically authorises the disclosure, or as required by domestic law, court or regulator. If a domestic law, court or regulator requires Ai Media Group to process or disclose the Personal Data to a third party, Ai Media Group must first inform the Customer of such legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the domestic law prohibits the giving of such notice.
3.4 Ai Media Group will reasonably assist the Customer, at no additional cost to the Customer, with meeting the Customer’s compliance obligations under Applicable Data Protection Law, taking into account the nature of Ai Media Group’s processing and the information available to Ai Media Group, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with the regulator under Applicable Data Protection Law.
3.5 Ai Media Group must promptly notify the Customer of any material changes to Applicable Data Protection Law that may reasonably be interpreted as adversely affecting Ai Media Group’s performance of the Terms of Service Agreement or this Agreement.
6.3 Immediately following any accidental, unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. Further, Ai Media Group will reasonably co-operate with the Customer at no additional cost to the Customer, in the Customer’s handling of the matter, including but not limited to:
(a) assisting with any investigation;
(b) providing the Customer with physical access to any facilities and operations affected;
(c) making available all relevant records, logs, files, data reporting and other materials required to comply with any Applicable Data Protection Law or as otherwise reasonably required by the Customer; and
(d) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or accidental, unauthorised or unlawful Personal Data processing.
6.4 Ai Media Group will not inform any third party of any accidental, unauthorised or unlawful processing of all or part of the Personal Data and/or a Personal Data Breach without first obtaining the Customer’s written consent, except when required to do so by domestic law.
6.5 Ai Media Group agrees that the Customer has the sole right to determine whether to provide notice of the accidental, unauthorised or unlawful processing and/or the Personal Data Breach to any Data Subjects, in-scope regulators, law enforcement agencies or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice.
7.3 If the Customer consents to appointment by Ai Media Group of a subcontractor located outside the EEA in compliance with the provisions of clause 8, then the Customer authorises Ai Media Group to carry out the risk based assessment of adequacy and enter into SCC contained in Schedule 2 with the subcontractor in the Customer’s name and on its behalf. Ai Media Group will make the executed SCC with the subcontractor available to the Customer on request.
8.3 Where the subcontractor fails to fulfill its obligations under the written agreement with Ai Media Group which contains terms substantially the same as those set out in this Agreement, Ai Media Group remains fully liable to the Customer for the subcontractor’s performance of its agreement obligations.
8.4 The Parties agree that Ai Media Group will be deemed to control legally any Personal Data controlled practically by or in the possession of its subcontractors.
9.3 Ai Media Group must notify the Customer within [seven] days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their other rights under Applicable Data Protection Law.
9.4 Ai Media Group will give the Customer, at no additional cost to the Customer, its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.
9.5 Ai Media Group must not disclose the Personal Data to any Data Subject or to a third party other than in accordance with the Customer’s written instructions, or as required by domestic law.
10.3 If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its Terms of Service Agreement obligations, the parties may agree to suspend the processing of the Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within [30 days, either party may terminate the Terms of Service Agreement on not less than 20 working days written notice to the other party.
11.3 If any law, regulation, or government or regulatory body requires Ai Media Group to retain any documents or materials or Personal Data that Ai Media Group would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents, materials or Personal Data that it must retain, the legal basis for retention, and establishing a specific timeline for deletion or destruction once the retention requirement ends.
This agreement has been entered into as of the Effective Date.
(signatures appear on the following page)
Signed by [NAME OF OFFICER]
for and on behalf of [NAME OF Customer] Title:
Signed by [NAME OF OFFICER]
for and on behalf of Ai Media Group Title:
Schedule 1 Personal Data processing purposes and details
The Compliance Data Platform assures all the data entering and leaving AI Media is compliant with Applicable Data Protection Law.
Schedule 2 Standard Contractual Clauses
(APPLICABLE ONLY WHERE USE OF PERSONAL DATA IS GOVERNED BY EUROPEAN DATA PROTECTION LEGISLATION)
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 protectio
Name of the data exporting organization: [insert Customer details] (the data exporter)
And
Ai Media Group (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 (1);
(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 sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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
2.1 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
(a) 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.
(b) 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.
(c) The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
(d) 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 organizational 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, unauthorized 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 sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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 (2)
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 organizational security measures specified in schedule 3 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 unauthorized access; and
(iii)any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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 sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
(a) 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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
(b) 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 sub-processor 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.
(c) The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
(d)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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
(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.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
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
Sub-processing
Clause 12
Obligation after the termination of personal data-processing services
On behalf of the data exporter:
Name (written out in full): …
Position: …
Address: …
Other information necessary in order for the contract to be binding (if any):
Image
Signature …
On behalf of the data importer:
Name (written out in full): …
Position: …
Address: AI MEDIA GROUP, LLC, One Penn Plaza, Suite 6243, New York, NY 10119
Appendix 1 to the Standard Contractual Clauses (Schedule 2)
This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
The data exporter is [ insert Customer name]
Data relating to individuals is collected by the Customer using the services provided by AI Media and its sub processors, and that data is transferred to AI Media for analysis and processing.
Data importer is Ai Media Group
Data Importer and its sub processors provides Customers with access to technology services that help marketing teams and their agencies create, plan, target, buy, serve, measure and/or optimise ads and campaigns.
Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
Individuals who interact with Customer’s digital marketing on a web or mobile site or call a telephone number in Customer’s digital marketing, and existing customers of contacts of the Customer whose details are held by the Customer.
Categories of data
The personal data transferred concern the following categories of data (please specify):
The types of data captured are determined by Customer and may include:
The types of personal data captured are determined by Customer and may include without limitation: Name, Email address, Date of birth, Telephone/mobile number, transaction history
Invoca’s tag also tracks and report browsing behavior campaign, search keyword, page views. Information also captured when call routed to Customer agent through recording and monitoring of calls.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The parties do not anticipate the transfer of special categories of data.
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
The data will be analyzed to establish which digital marketing had the most effective response to help the Customer marketing teams and their agencies create, plan, target, buy, serve, measure and/or optimize future ads and campaigns which may include identifying the digital profile of groups most responsive to the campaign and targeting future campaigns at a cohort with a similar digital profile.
DATA EXPORTER
Name: …
Authorized Signature …
DATA IMPORTER
Name: …
Authorized Signature …
Appendix 2 to the Standard Contractual Clauses at Schedule 2
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
See information relating to the Security Measures at Schedule 3 to the Agreement
Schedule 3 Security measures
Ai Media Group currently observes the Security Measures described in this Schedule 3. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the Terms of Service Agreement.
a) Access Control
Preventing Unauthorized Product Access
Preventing Unauthorized Product Use
Limitations of Privilege & Authorization Requirements
Transmission Control
Input Control
Availability Control
Ai Media Group’s products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists Ai Media Group’s operations in maintaining and updating the product applications and backend while limiting downtime.
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