This Affiliate Program Operating Agreement (the “Agreement”) is made and entered into by and between Eat Your Greens, LLC (“Eat Your Greens” or “we”), and the party submitting an application to become a Red Belly Honey affiliate (“Affiliate”). The terms and conditions contained in this Agreement apply to Affiliate’s participation RedBellyHoney.com (“Affiliate Program”). In connection with the Affiliate Program, Affiliate may see offers (each, an “Offer”) by Eat Your Greens or a third party (each such third party a “Client”) that may link to a specific web site for that particular Offer (“Program Web Site”). Furthermore, each Offer may have additional terms that are incorporated as part of this Agreement. By submitting an application or participating in an Offer, Affiliate expressly consents to all the terms and conditions of this Agreement and the individual accepting this Agreement represents that he or she has the authority to bind the Affiliate to the terms of this Agreement.
Enrollment in the Affiliate Program
Affiliate must submit an Affiliate Program application from Eat Your Greens’s website. Affiliate must provide accurate and complete information in Affiliate’s application. After Eat Your Greens reviews Affiliate’s application, Eat Your Greens will notify Affiliate of Affiliate’s acceptance or rejection to the Affiliate Program. Eat Your Greens may accept or reject Affiliate’s application at Eat Your Greens’s sole discretion for any reason.
Obligations of the Parties
Subject to Eat Your Greens’s acceptance of Affiliate as an affiliate and Affiliate’s continued compliance with the terms and conditions of this Agreement, Eat Your Greens agrees as follows:
- Eat Your Greens will make available to Affiliate via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links”) which Affiliate may display on web sites owned or controlled by Affiliate, in emails sent by Affiliate and in online advertisements (collectively, “Media”). The Links will serve to identify Affiliate as a member of Eat Your Greens’s Affiliate Program and will establish a link from Affiliate’s Media to the Program Web Site.
- Eat Your Greens will pay Affiliate for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person (as determined by Eat Your Greens), (iii) is not using pre-populated fields, (iv) completes all of the information required for such action within the time period allowed by Eat Your Greens, and (v) is not later determined by Eat Your Greens to be fraudulent, incomplete, unqualified or a duplicate user.
- Eat Your Greens will pay Affiliate any Commissions earned on a monthly basis, on every 5th of each month, provided that the total Commissions Eat Your Greens owes you is greater than $100. Accounts with a balance of less than $100 will roll over to the next month and will continue to roll over monthly until the $100 minimum is reached. Eat Your Greens reserves the right to charge back to Affiliate’s account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
- Payment for Commissions is dependent upon Clients providing such funds to Eat Your Greens, and therefore, Affiliate agrees that Eat Your Greens shall only be liable to Affiliate for Commissions to the extent that Eat Your Greens has received such funds from the Clients.
- Eat Your Greens shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Eat Your Greens in its sole discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to Eat Your Greens in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims or challenges based upon that invoice. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide Eat Your Greens with Affiliate’s reports within three (3) days after 30th day of the calendar month, and if Eat Your Greens’s and Affiliate’s reported statistics vary by more than 10% and Eat Your Greens reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then Eat Your Greens and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Eat Your Greens’s numbers shall govern.
- If Affiliate has an outstanding balance due to Eat Your Greens under this Agreement or any other agreement between the Affiliate and Eat Your Greens, whether or not related to the Affiliate Program, Affiliate agrees that Eat Your Greens may offset any such amounts due to Eat Your Greens from amounts payable to Affiliate under this Agreement.
Affiliate also agrees that:
- It has sole responsibility for the development, operation, and maintenance of, and all content on or linked to, the Media.
- All materials posted on the Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party, and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that Eat Your Greens informs Affiliate that it considers objectionable (collectively, “Objectionable Content”).
- It will not make any representations, warranties or other statements concerning Eat Your Greens or Client or any of their respective products or services, except as expressly authorized herein.
- The Media does not copy or resemble the look and feel of the Program Web Site or create the impression that the Media is endorsed by Eat Your Greens or Clients or a part of the Program Web Site, without prior written permission from Eat Your Greens.
- It will comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to its business, its Media or its use of the Links.
- It will comply with the terms, conditions, guidelines and policies of any third-party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
- It will always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by Eat Your Greens or Client, or as required by applicable laws regarding such Offers.
- It will not place Eat Your Greens ads on any online auction platform (i.e. eBay, Amazon, etc).
The following additional program-specific terms shall apply to any promotional programs set forth below:
- Email Campaigns. For all email campaigns, Affiliate must download the “Suppression List” from the Offers section of Eat Your Greens. Affiliate shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. Eat Your Greens will provide an opt-out method in all Links, however, if any opt-out requests come directly to Affiliate, Affiliate shall immediately forward them to Eat Your Greens at [email protected] Affiliate’s emails containing the Links may not include any content other than the Links, except as required by applicable law.
- Affiliate agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to Eat Your Greens pursuant to this Agreement or otherwise. Affiliate further agrees that it will not mail or market to any suppression files generated through the Eat Your Greens network, and that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to Eat Your Greens pursuant to this Agreement or otherwise.
- Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or message or bulletin boards unless otherwise agreed by Eat Your Greens in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as being served by Affiliate in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user’s computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software be easily removed according to generally accepted methods.
- Affiliate Network Campaigns. For all Affiliates that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the “Affiliate Network”) for access and use by those affiliates in the Affiliate Network (each a “Third Party Affiliate”). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Affiliate Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with the Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, the terms of this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, the Affiliate shall promptly disclose to Eat Your Greens the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of Eat Your Greens in the Affiliate Network upon written notice from Eat Your Greens. Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.
For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
- a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
- the material terms of the Agreement; and
- any information marked or designated by the Disclosing Party as confidential.
The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
- who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
- who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein.
Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
- is generally available to or known to the public through no wrongful act of the receiving party;
- was independently developed by the Receiving Party without the use of Confidential Information; or
- was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party.
The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
Limited License & Intellectual Property
Affiliate may not alter, modify, manipulate or create derivative works of the Links or any Eat Your Greens graphics, creative, copy or other materials owned by, or licensed to, Eat Your Greens in any way. Affiliate is only entitled to use the Links to the extent that Affiliate is a member in good standing of the Affiliate Program. Eat Your Greens may revoke Affiliate’s license any time by giving Affiliate written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant Affiliate any rights to any of Eat Your Greens’s trademarks, service marks, copyrights, patents or trade secrets. Affiliate agrees that Eat Your Greens may use any suggestion, comment or recommendation Affiliate chooses to provide to Eat Your Greens without compensation for any purpose. All rights not expressly granted in this Agreement are reserved by Eat Your Greens.
This Agreement shall commence on the date of Eat Your Greens’s approval of Affiliate’s Affiliate Program application and shall continue thereafter until terminated as provided herein. Affiliate may terminate Affiliate’s participation in the Affiliate Program at any time by removing all Links from Affiliate’s Media and deleting all copies of the Links. Eat Your Greens may terminate Affiliate’s participation in one or more Offers or this Agreement at any time and for any reason which Eat Your Greens deem appropriate with or without prior notice to Affiliate by disabling the Links or providing Affiliate with a written notice. Upon termination of Affiliate’s participation in one or more Offers or this Agreement for any reason, Affiliate will immediately cease all use of and delete all Links, plus all Eat Your Greens or Client intellectual property, and will cease representing yourself as a Eat Your Greens or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to Eat Your Greens under this Agreement Eat Your Greens reserves the right to delete any actions submitted through Affiliate’s Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to Affiliate’s account if (i) Eat Your Greens determines that Affiliate has violated this Agreement, (ii) Eat Your Greens receives any complaints about Affiliate’s participation in the Affiliate Program which Eat Your Greens reasonably believes is in violation this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Eat Your Greens reserves the right to disclose Affiliate’s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Affiliate’s actions. Such suspension will be in addition to Eat Your Greens’s available rights and remedies.
Affiliate must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. From time to time, Eat Your Greens may request – prior to Affiliate’s sending emails containing linking or referencing the Affiliate Program that Affiliate submit the final version of Affiliate’s email to Eat Your Greens for approval by sending it to Affiliate’s Eat Your Greens representative and upon receiving written approval from Eat Your Greens of Affiliate’s email the email may be transmitted to third parties.
It is solely Affiliate’s obligation to ensure that the email complies with the Act. Affiliate agrees not to rely upon Eat Your Greens’s approval of Affiliate’s email for compliance with the Act or assert any claim that Affiliate are in compliance with the Act based upon Eat Your Greens’s approval.
Affiliate is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed Affiliate’s permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. Eat Your Greens shall make all determinations about fraudulent activity in its sole discretion.
Representations and Warranties
The parties agree to the terms in the General Data Protection Regulation Data Processing Addendum, which is incorporated into this Agreement.
Affiliate represents and warrants that:
- it has the power and authority to enter into and perform its obligations under the Agreement;
- at all times, the Media and Affiliate itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Laws”);
- it owns and/or has any and all rights in the Media as contemplated by the Agreement;
- at all times, the Media and Affiliate itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
- Affiliate has a reasonable basis for any and all claims made within the Media and possesses appropriate documentation to substantiate such claims;
- Affiliate shall fulfill all commitments made in the Media;
- no Media is targeted to end-users under the age of eighteen (18);
- prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, and cookies, Affiliate shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program and/or cookies;
- the Media does not and will not:
- contain any misrepresentations or content that is defamatory;
- contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
- promote or support gambling or sweepstakes or contests; or
- contain any “worm,” “virus” or other device that could impair or injure any person or entity;
- Affiliate is not, nor is Affiliate acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and
- Affiliate is not, nor is Affiliate acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time.
In addition to any notice permitted to be given under this Agreement, Eat Your Greens may modify any of the terms and conditions of this Agreement at any time by providing Affiliate with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to Affiliate, Affiliate may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Affiliate’s continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute Affiliate’s acceptance of such change.
In addition, Eat Your Greens may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from Eat Your Greens to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
Affiliate acknowledges that it has read this Agreement and agrees to all its terms and conditions. Affiliate has independently evaluated the desirability of participating in the Affiliate Program and each Offer and is not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
Affiliate shall irrevocably defend, indemnify and hold Eat Your Greens and Clients and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
- Affiliate’s breach of the Agreement;
- the Media; and/or
- any claim that Eat Your Greens is obligated to pay any taxes in connection with Affiliate’s participation hereunder.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, Eat Your Greens EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Eat Your Greens DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. Eat Your Greens EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. Eat Your Greens DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
Limitation of Liability
IN NO EVENT SHALL Eat Your Greens BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF Eat Your Greens. IN NO EVENT WILL Eat Your Greens BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT Eat Your Greens HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. Eat Your Greens’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY Eat Your Greens IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Governing Law & Miscellaneous
- Assignment. Affiliate may not assign, transfer or delegate any of its rights or obligations under the Agreement without the prior written consent of Eat Your Greens, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement or any portion hereof/thereof, to:
- an acquirer of all or substantially all of such party’s equity, business or assets;
- a successor in interest whether by merger, reorganization or otherwise; or
- any entity controlling or under common control with such party.
- Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of Washington. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to a court of competent jurisdiction located in King County, Washington, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
- Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
- Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of affiliateship, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf.
By submitting and application to Affiliate Program, Affiliate affirms and acknowledges that Affiliate has read this Agreement in its entirety and agrees to be bound by all of its terms and conditions. If Affiliate does not wish to be bound by this Agreement, Affiliate should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
GDPR Data Processing Addendum
This General Data Protection Regulation Data Processing Addendum (“GDPR Addendum”) is incorporated by reference into the Affiliate Program Operating Agreement by and between You (“Affiliate”), and Us (“Network” or Processor”), (collectively, the “Agreement”). This GDPR Addendum is entered into as of the date of the Affiliate Program Operating Agreement.
This GDPR Addendum sets out the terms that apply when Personal Data, as defined in the Data Protection Legislation, is processed by Network under the Agreement. The purpose of the GDPR Addendum is to ensure such processing is conducted in accordance with applicable laws, including EU Data Protection Legislation, and with due respect for the rights and freedoms of individuals whose Personal Data are processed.
Capitalized terms used but not defined in this GDPR Addendum have the same meanings as set out in the Agreement.
Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Applicability. This GDPR Addendum shall only apply to the extent Affiliate is established within the European Union (“EU”) or Switzerland or the United Kingdom and/or to the extent Network processes Personal Data of Data Subjects located in the EU or Switzerland or the United Kingdom on behalf of Affiliate.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This Section 1 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Affiliate is the data controller and Network is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
Without prejudice to the generality of clause 1.1, the Affiliate, as Controller, shall be responsible for ensuring that, in connection with Affiliate Personal Data and the Services, (i) it has complied, and will continue to comply, with all applicable laws relating to privacy and data protection, including EU Data Protection Legislation; and (ii) it has, and will continue to have, the right to transfer, or provide access to, the Personal Data to Network for processing in accordance with the terms of the Agreement and this GDPR Addendum.
Without prejudice to the generality of clause 1.1, Network shall, in relation to any Personal Data processed in connection with the performance by Network of its obligations under this agreement:
- process that Personal Data only for the purposes set forth in the Agreement and Schedule 1 and only in accordance with the lawful, documented instructions of Affiliate, except where otherwise required by applicable law. Any processing required outside of the scope of these instructions (inclusive of the rights and obligations set forth under the Agreement) will require prior written agreement of the parties. Where Network is relying on laws of a member of the EU or EU law as the basis for processing Personal Data, Network shall promptly notify the Affiliate of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Network from so notifying the Affiliate;
- ensure that it has in place appropriate technical and organizational measures, available for review and approval by the Affiliate, to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymisation and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and Network complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred;
- assist the Affiliate, at the Affiliate’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators. For the avoidance of doubt, Affiliate is responsible for responding to Data Subject request for access, correction, restriction, objection, erasure or data portability of that Data Subject’s Personal Data;
- notify the Affiliate without undue delay on becoming aware of a Personal Data breach;
- upon termination or expiration of the Agreement, in accordance with the terms of the Agreement and within a reasonable amount of time, delete or make available to Affiliate for retrieval all relevant Personal Data in Network’s possession; except to the extent that Network is required by any applicable law to retain some or all of such data. Network shall extend the protections of the Agreement and this GDPR Addendum to any such Personal Data and limit any further processing of such Personal Data to only those limited purposes that require the retention; and
- maintain complete and accurate records and information to demonstrate its compliance with this Section 2.4.
The Affiliate consents to Network appointing third-party processors of Personal Data under this agreement, including TUNE (“Sub-processors”). Network confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially similar to those set out in this Agreement. As between the Affiliate and Network, Network shall remain fully liable for all acts or omissions of any Sub-processor appointed by it pursuant to this Section 2.5.
Network may, at any time on not less than 30 days’ notice with email sufficing, add or make changes to the Sub-processors. Affiliate may object in writing to Network’s appointment of a new Sub-processor within five (5) business days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties will discuss such concerns in good faith with a view to achieving resolution. If Network cannot provide an alternative Sub-processor, or the parties are not otherwise able to achieve resolution as provided in the preceding sentence, Affiliate, as its sole and exclusive remedy, may terminate the Agreement.
Except as stated in this GDPR Addendum, the Agreement will remain in full force and effect. If there is a conflict between the Agreement and this GDPR Addendum, the terms of this GDPR Addendum will control.
Any claims brought under this GDPR Addendum shall be subject to the terms and conditions, including by not limited to, the exclusion and limitations set forth in the Agreement.
Schedule 1 Processing, Personal Data and Data Subjects
Details of Data Processing
- Subject Matter: The subject matter of the data processing under this GDPR Addendum is the Affiliate Personal Data.
- Duration: As between Network and Affiliate, the duration of the data processing under this GDPR Addendum is until the termination of the Agreement in accordance with its terms.
- Purpose: The purpose of the data processing under this GDPR Addendum is the provision of the Services to the Affiliate and the performance of Network’s obligations under the Agreement (including this GDPR Addendum) or as otherwise agreed by the parties in mutually executed written form.
- Nature of the processing: Network provides performance marketing solutions and such other Services as described in the Agreement, which process Affiliate Personal Data upon the instruction of the Affiliate in accordance with the terms of the Agreement.
- Categories of data subjects: Affiliate may submit Affiliate Personal Data to the Services, the extent of which is determined and controlled by Affiliate in its sole discretion, and which may include, but is not limited to, Personal Data relating to the following categories of data subjects:
- Employees, agents, advisors, freelancers of Affiliate (who are natural persons); and/or
- Affiliate’s end-users authorized by Affiliate to use the Services.
- Types of Personal Data: Affiliate may submit Affiliate Personal Data to the Services, the extent of which is determined and controlled by Affiliate in its sole discretion, and which may include, but is not limited to identification and contact data; financial information; and/or certain information about Affiliate’s end users (such as IP address and device identifier).
- Sensitive Personal Data (if applicable): Affiliate shall not send Network any Sensitive Personal Data (as defined in the Data Protection Legislation).