Data Processing Agreement
Last updated: 22.12.2021
This Data Processing Agreement (“Data Processing Agreement”, “DPA”, “Agreement”) entered into by and between Client (as defined under the Terms and Conditions) (hereinafter referred to as “Client” or “you”) and NewProgrammatic (as defined under the Terms and Conditions) (hereinafter referred to as “NewProgrammatic”, “us” or “we”) is effective as of 25 May, 2018 and forms an integral part of, and is subject to, Terms and Conditions available at https://newprogrammatic.com/terms-and-conditions/, and/or to the Publisher Terms & Conditions available at https://newprogrammatic.com/publisher-terms-conditions/ (if applicable).
Client and NewProgrammatic are hereinafter jointly referred to as the “Parties” and individually as the “Party”. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms and Conditions, and/or in the Publisher Terms & Conditions (if applicable). In the event of any conflict between this DPA and the Terms and Conditions, the terms of this DPA shall prevail.
This Agreement only applies to the extent that the EU Data Protection Law applies to the Processing of Personal Data under this Agreement, including if (a) the Processing is carried out in the context of the activities of an establishment of either Party in the European Economic Area (“EEA”), and/or (b) the Personal Data relates to Data Subjects who are in the EEA and the Processing relates to the offering to them of goods or services or the monitoring of their behavior in the EEA.
“Controller” or “Data Controller” means the entity that determines the purposes and means of the Processing of Personal Data.
“Processor” or “Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.
“Data Subject” means the individual to whom Personal Data relates, including End Users.
“End User” means the end user of an internet connected device, such as a visitor to a web page, a user of a mobile app, or a user of an IoT device, or a visitor on advertisement or campaign webpage.
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and 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 (also known as “General Data Protection Regulation”).
“Personal Data” means any information relating to an identified or identifiable person as defined in Article 4.1 of the GDPR.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction (“Process”, “Processes” and “Processed” shall have the same meaning).
“Sub-Processor” means any Data Processor engaged by the Processor.
“Services” means services provided by the NewProgrammatic in accordance with the Terms and Conditions, and/or with the Publisher Terms & Conditions (if applicable).
2. PROCESSING OF PERSONAL DATA
2.1. Under this DPA and with respect to Personal Data, Client is Data Controller or Processor and NewProgrammatic is engaged by Client as Processor or another Processor (Sub-Processor) in respect to Personal Data, as applicable. The terms of this Agreement shall apply to either of the relations between the Parties regarding the Processing of Personal Data mentioned herein.
2.2. Within the scope of this DPA, Client hereby engages NewProgrammatic to collect, process and/or use Personal Data on Client’s behalf.
2.3. NewProgrammatic will only Process Personal Data on your behalf and in accordance with your instructions. The instructions from the Client to Process Personal Data are the following: (i) Processing shall be carried out in accordance with this DPA, the Terms and Conditions and pursuant to the features and limitations of the applicable Services which NewProgrammatic provides to Client; and (ii) Processing shall be carried out in compliance with other reasonable instructions provided by the Client, where such instructions are consistent with the Terms and Conditions. NewProgrammatic will be under no obligation to comply with instructions that NewProgrammatic deems as violating applicable laws. Processing outside the scope of this DPA (if any) will require: (i) prior written agreement between Client and the NewProgrammatic, and (ii) Client’s additional instructions for processing.
2.4. NewProgrammatic uses the Personal Data solely to provide the Services in accordance with Terms & Conditions, i.e. in order to perform tracking services / serve End Users with interest–based advertising, as well as to measure the effectiveness of advertising campaigns and provide you with advertising reports. In that context, the NewProgrammatic – on your demand – may also combine Personal Data from different sources in order to improve Services and integrate Services with external platforms, all of which will be conducted on your behalf. NewProgrammatic also processes Personal Data on your behalf and to serve your interests for the purposes of fraud prevention, bot detection, rating, analytics, viewability, ad security services. NewProgrammatic may also process data based on the extracts of Personal Data in aggregated and non-identifiable forms, including for the purposes of testing, development, control and operation of the Services.
2.6. Without derogating from any of the obligations of the Client hereunder, the Client shall not provide NewProgrammatic with any data a) which by itself identifies an individual, such as name, address, phone number, email address; and b) regarding children, or any special categories of personal data, as defined under Article 9 of the GDPR, except as may otherwise be expressly agreed in writing between the Parties and in accordance with the applicable law. This type of data is not necessary to use the NewProgrammatic’s Services.
2.9. You acknowledge and agree that you retain sole responsibility for the lawfulness of the Processing and warrant to the NewProgrammatic that you are legally allowed to engage the NewProgrammatic to process Personal Data on your behalf, have provided all necessary notices and obtained all required consents from the Data Subjects (if apply) for the purposes of the Processing described in this DPA.
3. RIGHTS OF DATA SUBJECTS
3.1. NewProgrammatic shall notify Client via e-mail if he receives a request from a Data Subject in the subject of access to, correction, amendment, deletion of or objection to the processing of that Data Subject’s Personal Data. NewProgrammatic shall not respond to any such Data Subject request without Client’s prior written consent, except in order to confirm that the request relates to the Client.
3.2. To the extent that Client responds to any such Data Subject request, NewProgrammatic shall provide Client, to the extent required by law, with commercially reasonable cooperation and assistance in relation to handling of a Data Subject’s request, to the extent legally permitted.
3.3. NewProgrammatic reserves the right to charge additional fees in relation to the cooperation with the Client in regard to this DPA.
4. NEWPROGRAMMATIC’S PERSONNEL
4.1. NewProgrammatic shall ensure that its personnel engaged in the Processing of Personal Data is informed of the confidential nature of the Personal Data, has received appropriate training on their responsibilities and is subject to obligations of confidentiality. Such obligations shall survive the termination of that individual’s engagement with the NewProgrammatic.
4.2. NewProgrammatic shall ensure that access to Personal Data is limited only to those members of personnel who require that access in order to fulfil NewProgrammatic’s obligations under the Terms and Conditions.
5.1. Pursuant to Article 28, Section 3(c) of the General Data Protection Regulation, the NewProgrammatic shall take the measures required by the Article 32 of the GDPR.
5.2. NewProgrammatic shall provide sufficient guarantees of implementation of the appropriate technical and organizational measures in a manner that the processing will meet the requirements of the GDPR and ensure the protection of the rights of the Data Subject.
5.3. NewProgrammatic imposes appropriate contractual obligations upon its personnel that engages in the Processing of Personal Data, including relevant obligations regarding confidentiality, data protection and data security. NewProgrammatic ensures that its applicable personnel has been properly informed of the confidential nature of the Personal Data, has received appropriate training and has executed written confidentiality agreements. NewProgrammatic will further ensure that such confidentiality agreements will survive the termination of employment or another form of engagement of its personnel.
5.4. Only authorized persons, who are also obligated to keep confidential information confidential, including in particular Personal Data processed by New, employees and other persons employed by NewProgrammatic or cooperating with NewProgrammatic, are entitled to stay in the NewProgrammatic’s area of Personal Data Processing. Access to the area of Data Processing is controlled with the use of the individual door entry cards. The area of Personal Data Processing is also protected 24 (twenty four) hours a day, 7 (seven) days a week by security guards.
5.5. NewProgrammatic has Personal Data Protection Policy as well as other data protection documentation (with regard to IT systems included but not limited to: ‘IT Systems Continuity Procedure and BCAL & BIA & DRP’, ‘Backup, disaster recovery and testing procedures (including re-execution of the right to be forgotten)’, ‘Procedure of granting and registering permissions in IT Systems’) implemented in its organization that ensures ongoing confidentiality, integrity, availability and resilience of processing systems and service.
5.6. NewProgrammatic’s IT systems processing Personal Data ensure accountability of the operations performed on Personal Data by reporting information about the date, scope and person performing a given operation. Personal Data databases and systems are subject to periodic carrying out of backup copies. The NewProgrammatic’s IT Administrator is responsible for making and testing backup copies.
5.7. Servers processing Personal Data are installed in the secure server room or entrusted to other providers, to whom processing of Personal Data was entrusted.
5.8. NewProgrammatic has implemented security measures against unauthorized access and operation of malware: firewall protecting an access to the local network from the Internet (the NewProgrammatic’s IT Administrator is responsible for firewall administration) and antivirus software (virus definition database is updated on an ongoing basis and as soon as new definitions are released by the software producer).
5.9. A typical pseudonymization in NewProgrammatic shall replace the direct identifier of the data subject with CID and/or UID number. NewProgrammatic’s processes also provide a standard approach to anonymization when publishing, including a set of standard anonymization plans. A standard anonymization plans as well as standard anonymization techniques on which these plans are built are specified in NewProgrammatic’s procedures. NewProgrammatic follows the steps of identifying the nature of information to publish and data source(s), assessing risk and specifying data anonymization, deriving non- identifying data from data source(s), reviewing/testing data provided are non-identifying and publishing.
5.10. Measures to ensure Personal Data protection at the time of their transfer consist of implemented verification and supervision procedure for the processors as well as SSP partners. Where it is necessary to carry out the verification questionnaire, the DPO directly, through the designated person or a person responsible for conducting an agreement with a potential processor/partner, requests the processor/partner to complete it. The DPO assesses the processor/partner on the basis of the completed questionnaire and informs the designated person of the verification outcome before the agreement can be concluded.
5.11. Specific technical and organizational measures taken by NewProgrammatic to provide assistance to the Client consist of specific NewProgrammatic’s procedures in force regarding especially finding information about Personal Data being processed in NewProgrammatic’s systems, handling and notifying of Personal Data security incidents, handling the data subjects’ requests. As an example in case of data subjects’ requests the special employees have been designated for specific organizational units and data processing processes, whose task is to cooperate with the DPO on processing the applications of data subjects.
6. AUDIT RIGHT
6.1. To the extent that the applicable law requires you to be in a position to monitor the adequate Processing of Personal Data, you as the Client have the right to request an audit from the NewProgrammatic to the extent necessary to review whether we as the NewProgrammatic and our Sub-Processors are compliant with the following regulations: (i) any provisions of the Law, (ii) the terms of this DPA, and (iii) Client’s instructions.
6.2. NewProgrammatic may provide you with a copy of its most recent third-party audits or certifications issued by an independent, third-party auditor, as applicable, or any summaries thereof in order to fulfil your audit rights. If an audit is required by law and where its requirements cannot be fulfilled by the provision of such certification, you may conduct, either by yourself or through a third party independent contractor selected by you at your expense, an on-site audit of the NewProgrammatic. Such audit may be conducted subject to the following terms: (i) the audit will be pre-scheduled in writing with NewProgrammatic at least 30 days in advance and will be performed once a year at most; (ii) if applicable, all of your personnel performing the audit, whether employed or contracted by you, will execute a NewProgrammatic’s standard non-disclosure agreement prior to the initiation of the audit, and a third party auditor will in addition execute a non-competition undertaking; (iii) you will undertake all necessary measures to ensure and verify that the auditors do not access, disclose or compromise the confidentiality and security of Personal Data other than Your Personal Data on NewProgrammatic’s information and network systems; (iv) you will take all necessary measures to prevent any damage or interference with NewProgrammatic or its service providers’ information and network systems; (v) you will bear all costs and assume responsibility and liability for the audit and for any failures or damage caused as a result thereof; and (vi) any audit activities on NewProgrammatic’s third-party service providers’ information systems will be pre-scheduled and agreed on with the applicable providers; (vii) you will keep the audit results in strict confidentiality, use them solely for the specific purposes of the audit under this Section 6 and the GDPR will not use the results for any other purpose, or share them with any third party, without the NewProgrammatic’s prior explicit written confirmation; (viii) If you are required to disclose the audit results to a competent authority, you will provide the NewProgrammatic with a prior written notice, explaining the details and necessity of the disclosure, as well as provide all further necessary assistance to prevent such disclosure.
7. SECURITY BREACH MANAGEMENT AND NOTIFICATION
7.1. If NewProgrammatic becomes aware of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to any Personal Data transmitted, stored, or otherwise Processed on NewProgrammatic’s equipment or in NewProgrammatic’s facilities (“Security Breach”), NewProgrammatic will promptly: (i) notify the Client of the Security Breach; (ii) investigate the Security Breach and provide Client with all relevant information about the Security Breach; and (iii) take all commercially reasonable steps to mitigate the effects and minimize any damage resulting from the Security Breach.
8. SUBPROCESSING AND TRANSBORDER DATA TRANSFERS
8.1. Client authorizes NewProgrammatic to appoint Sub-Processors in order to provide the Services.
8.2. NewProgrammatic may continue to use the Sub-Processors already engaged by the NewProgrammatic according to this DPA.
8.3. It is acknowledged and agreed by the Client that NewProgrammatic uses the following Sub-Processors for the purpose of providing its Services:
|Sub-Processors||Services provided by Sub-Processors||Transborder data processing legal basis|
|Amazon Web Services Inc.||Cloud hosting services||A subcontracting agreement based on the standard contractual clauses launched by virtue of the EU Commission Decision|
|Freshworks Inc.||Help desk services||A subcontracting agreement based on the standard contractual clauses launched by virtue of the EU Commission Decision|
|Loggly Inc.||Analytical services||A subcontracting agreement based on the standard contractual clauses launched by virtue of the EU Commission Decision|
8.4. NewProgrammatic may appoint new Sub-Processors and shall give notice of the appointment of any new Sub-Processor (for instance, as a part of this Agreement amendment), whether by general or specific reference to such Sub-Processor (e.g., by name or type of service), including relevant details of the Processing to be undertaken by the new Sub-Processor. If within seven (7) days from such notice Client notifies NewProgrammatic of any objections in writing (on reasonable grounds) to the proposed appointment, the NewProgrammatic shall not appoint the proposed Sub-Processor for the processing of Client’s Personal Data until reasonable steps have been taken to address the objections raised by the Client and until the Client has been provided with a reasonable explanation of the steps undertaken. Where such steps are not sufficient to eliminate the Client’s reasonable objections, either the Client or NewProgrammatic may, by notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which require the use of the proposed Sub-Processor without bearing liability for such termination.
8.5. NewProgrammatic may integrate the Client’s services with external service providers’ platforms for the purpose of providing its Services, on Client’s behalf and for the purposes of serving the Client’s interests, where such external service providers may be Sub-Processors, which Client hereby agrees to. A full list of such Sub-Processors is available upon the Client’s written request directed to the NewProgrammatic.
8.6. Notwithstanding the provisions above, you hereby authorize the NewProgrammatic to subcontract the Processing to the Sub-Processors based outside of the European Economic Area (EEA) to the extent necessary to duly perform the Service(s), under the condition that the Sub-Processors will provide sufficient guarantees in relation to the required level of data protection, e.g. through a subcontracting agreement based on the standard contractual clauses launched by virtue of the EU Commission Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council or based on other applicable transborder data transfer mechanisms.
9. TERM AND RETENTION PERIOD
9.1. This DPA automatically supplements the agreement concluded by and between you and NewProgrammatic under NewProgrammatic Terms and Conditions when you create your NewProgrammatic account.
9.2. Subject to the provision of section 9.3. below, Client authorizes NewProgrammatic to retain Personal Data for a period of 3 months from the date of its collection on Client’s behalf and for the purpose of serving its interests, including for fraud prevention, ad security services, reporting services, complaints or chargebacks handling. This data may be deleted from the NewProgrammatic’s servers after this retention period and/or after the termination of Agreement (in accordance with point 9.3. below) or earlier, at your written request. If Client instructs NewProgrammatic to delete such data during the above mentioned period such data will be no longer available to Client and can not be recovered by Client.
9.3. This Agreement shall continue in force until the termination of the agreement for Services concluded between you and NewProgrammatic when you create your NewProgrammatic account (the “Term”). In particular this Agreement is subject to termination upon deletion of your NewProgrammatic account (the “Expiry of the Term”). On the Expiry of the Term, Clients hereby instructs NewProgrammatic to delete all data subjects to this Agreement and processed by NewProgrammatic on behalf of the Client, in particular End Users’ Data, from NewProgrammatic systems (including existing copies of it), within 3 months after expiration. After a period up to 3 months following such expiry, all the data will be deleted and no longer available to Client, which the Client acknowledges and agrees to. Client has nevertheless the right to retrieve such data within the abovementioned 3 months period following the Expiry of Term. The retrieving of the data is carried out in a manner agreed on between NewProgrammatic and Client and only upon Client’s request made no later than within the above mentioned maximum period of 3 months. Client acknowledges and agrees that NewProgrammatic will not be responsible for storage, exporting or retrieving this data after the expiry of the period indicated above.
10. NOTICES AND CONTACT TO DATA PROTECTION OFFICER
10.1. If you wish to make any inquiries about this Agreement, please contact our data protection officer at [email protected]
11. LIMITATION OF LIABILITY
11.1. Client shall indemnify and hold NewProgrammatic, its officers, directors, employees, contractors, and agents harmless from and against all claims, liabilities, administrative fines, suits, judgments, actions, investigations, settlements, penalties, fines, damages and losses, demands, costs, expenses, and fees including reasonable attorneys’ fees and expenses, arising out of or in connection with any claims, demands, investigations, proceedings, or actions brought by data subjects, legal persons (e.g., corporations and organizations), or supervisory authorities under the data protection laws that apply to NewProgrammatic in respect of processing of Personal Data on behalf of Client through Services.
11.2. The liability of each party under this Agreement shall be subject to the exclusions and limitations of liability set out in the Terms & Conditions, and/or in the Publisher Terms & Conditions (if applicable).
12. GOVERNING LAW
12.1. This Agreement shall be governed by, and is construed in accordance with, the laws of the State of Poland, without giving any effect to any choice of law and provisions thereof that would cause the application of the laws of any other jurisdiction.