Terms & Conditions – Pro Data Processing

Appendix 2 – Data Processing Terms

In connection with the Platform-Accessed Services provided pursuant to this Agreement to you as data controller (referred to as “Licensee”, “you” or “your”) by either Perform Content Limited or the relevant Affiliate which is party to the Agreement (the relevant party referred to as “Stats Perform” or “we”, “us” or “our”) as data processor, the parties have agreed that these data processing terms (“Terms”) shall apply in order to address the compliance obligations imposed upon the Licensee under Data Protection Law.

 NOW IT IS HEREBY AGREED as follows:

1.DEFINITIONS

1.1. In these Terms, capitalised words shall have the meaning as set out below or, as the case may be, elsewhere in this Agreement:

1.2. The terms “data subject”, “personal data”, “processing” and variations, “controller” and “processor” shall have the meaning attributed to them in Data Protection Law.

2. APPOINTMENT

2.1. The Licensee is designated by its Affiliates to provide and manage various services, including the Services on their behalf. Accordingly, Licensee Personal Data may contain personal data in relation to which Licensee Affiliates are controllers. The Licensee confirms that it is authorized to communicate to Stats Perform any instructions or other requirements on behalf of Licensee Affiliates in respect of processing of Licensee Personal Data by Stats Perform in connection with the Services.

2.2. Stats Perform is appointed by the Licensee to process Licensee Personal Data on behalf of the Licensee and/or Licensee Affiliates, as the case may be, as is necessary to provide the Services or as otherwise agreed by the parties in writing.

3. DURATION

The Terms shall apply from the Effective Date and shall continue in full force and effect until the termination or expiration of the Agreement or the Services (the “Term”).

4. DATA PROTECTION COMPLIANCE

4.1. In relation to its processing of Licensee Personal Data during the Term, save as otherwise required by law, Stats Perform agrees to:

(a) comply with Data Protection Law in relation to its processing of Licensee Personal Data;

(b) process Licensee Personal Data only as required in connection with the Services, in accordance with the Licensee’s documented lawful instructions reasonably given in the context of the Services from time to time, and for its internal business analysis of anonymised data. The Licensee warrants and represents on a continuous basis that its instructions will not put Stats Perform in breach of the law;

(c) inform the Licensee if, in its opinion, an instruction infringes Data Protection Law;

(d) ensure that all personnel authorised by Stats Perform to process Licensee Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(e) implement appropriate technical and organisational measures to appropriately safeguard Licensee Personal Data having regard to the nature of Licensee Personal Data which is to be protected and the risk of harm which might result from any Security Breach (as defined below), as set out in Stats Perform’s Information Security Policy;

(f) inform, without undue delay, the Licensee of any data subject requests under Data Protection Law or regulatory or law enforcement requests relating to Licensee Personal Data. Stats Perform may acknowledge each data subject access request. Where agreed, Stats Perform may, at Licensee’s expense, respond to the subject access request on Licensee’s behalf;

(g) at Licensee’s expense, provide such assistance as the Licensee may reasonably require in order to ensure the Licensee’s compliance with Data Protection Law in relation to data security, data breach notifications, data protection impact assessments and prior consultations with competent supervisory authorities with responsibility for privacy and data protection matters;

(h) at the choice and expense of the Licensee, delete or return all Licensee Personal Data to the Licensee after the end of the provision of Services, and delete existing copies of all Licensee Personal Data, save for anonymised Licensee data retained for legitimate business purposes; and

(i) at Licensee’s expense, make available to Licensee information reasonably necessary to demonstrate Stats Perform’s compliance with this Agreement and allow for audits carried out by an independent third party, as the parties may agree.

5. NOTICE

Stats Perform will, upon Licensee request and at Licensee’s expense, provide to each data subject a standard Licensee privacy notice as the Licensee may reasonably request from time to time in accordance with the Agreement.

6. SUBPROCESSORS

6.1. Stats Perform will engage any subcontractors involved in the processing of Licensee Personal Data (each a “Sub-processor”) only with Licensee’s consent, which is, subject to clause 2, hereby given.

6.2. When engaging a Sub-processor, Stats Perform will:

(a) carry out reasonable due diligence;

(b) enter into a contract on terms, as far as practicable, which are the same as those in these Terms, and which may include Contractual Clauses on the Licensee’s behalf, to provide adequate safeguards with respect to the processing of Licensee Personal Data; and

(c) inform the Licensee of any intended changes concerning the addition or replacement of a Sub-processor from time to time. If the Licensee objects to any such change on reasonable grounds then, acting in good faith, the parties will work together to resolve such objection.

6.3. If Stats Perform disagrees with the objection on reasonable grounds, the parties may agree to either continue with the Services and the Sub-processor, or terminate the Agreement with immediate effect provided that all fees and expenses will become immediately payable by Licensee calculated as if the Agreement were lawfully terminated by the Licensee for convenience.

7. SECURITY INCIDENTS

7.1. “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Licensee Personal Data transmitted, stored or otherwise processed.

7.2. Stats Perform will notify the Licensee without delay if it becomes aware of any Security Breach. Where practicable, Stats Perform will provide phased notifications.

7.3. Stats Perform will investigate the Security Breach and take reasonable action to identify, prevent and mitigate the effects of the Security Breach. At the Licensee’s expense, Stats Perform will take such further action as the Licensee may reasonably request in order to comply with Data Protection Law.

7.4. The Licensee may not release or publish any filing, communication, notice, press release, or report concerning any Security Breach (“Notices“) without Stats Perform’s prior written approval; such approval shall not be unreasonably withheld.

8. INTERNATIONAL DATA TRANSFERS

8.1. Stats Perform will ensure that no Licensee Personal Data are transferred out of either:

(a) the European Economic Area; or

(b) any other territory in which restrictions are imposed on the transfer of Licensee Personal Data across borders under Data Protection Laws,
without the express prior written consent of Licensee, which is hereby given, subject to clause 8.2

8.2. Stats Perform will ensure that Contractual Clauses or other applicable transfer mechanism, such as EU-US Privacy Shield Framework in relation to EU-US transfers, is in place on the Licensee’s behalf to ensure an adequate level of data protection.

9. INDEMNITY

9.1. Notwithstanding any exclusion or limitation of liability or any provision in the Agreement to the contrary, the Licensee shall and hereby agrees to indemnify Stats Perform and its Affiliates and their officers, employees, agents and subcontractors (each an “Indemnified Party”) from and against any claims, losses, demands, actions, liabilities, fines, penalties, reasonable expenses, damages and settlement amounts (including reasonable legal fees and costs) incurred by any Indemnified Party as a result of any third party claim, enforcement action or other proceedings arising out of or in connection with the processing of Licensee Personal Data in accordance with the Agreement and these Terms.

9.2. Subject to clauses 9.1 and 10.2, either party’s liability under these Terms shall be subject to the liability provisions in the Agreement.

10. MISCELLANEOUS

10.1. Clause and other headings in these Terms are for convenience of reference only and shall not constitute a part of or otherwise affect the meaning or interpretation of these Terms.

10.2. Nothing in these Terms will exclude or limit the liability of either party which cannot be limited or excluded by applicable law. Subject to the foregoing sentence, (i) these Terms, including any appendices, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties relating to its subject matter; and (ii) in entering into these Terms neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty, whether made negligently or innocently, except those expressly set out in these Terms.

10.3. The Licensee shall pay to Stats Perform within 30 days of invoice date any costs and expenses including without limitation reasonable attorney fees and the cost of preparing and sending correspondence incurred by Stats Perform and/or its Affiliates in connection with carrying out duties at the Licensee’s expense under these Terms.

10.4. All notices of termination or breach must be in English, in writing and addressed to the other party’s primary contact person and legal department. Notice will be treated as given on receipt, as verified by a valid receipt or electronic log. Postal notices will be deemed received 48 hours from the date of posting by recorded delivery of registered post.

10.5. The provisions of these Terms are severable. If any phrase, clause or provision is invalid or unenforceable in whole or in part, such invalidity or unenforceability shall affect only such phrase, clause or provision, and the rest of these Terms shall remain in full force and effect.

10.6. Either party may transfer its rights and/or obligations under these Terms to its successor as a result of a merger, acquisition, sale, reorganisation or liquidation.

10.7. These Terms are governed by English law and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning these Terms save that either party may apply to any court for an injunction or other relief to protect its property, intellectual property rights or confidential information.

SCHEDULE                                               

Description of Services and Personal Data Processing