The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalised terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended, and including, this Addendum.
In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
- “Applicable Laws” means (a) European Union law or any laws of a member state of the European Union in respect of which Tagado or Customer is subject to; and (b) any Israeli and other applicable law in respect of which Tagado or Customer is subject to;
- “SCC“ means the applicable model of the standard clauses for the transfer of Personal Data pursuant to the European Commission Implementing 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 available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021D0914&from=EN
- “Customer Personal Data” means any Personal Data which may be processed by a Tagado on behalf of Customer, pursuant to or in connection with the Agreement;
- “Data Protection Legislation” means GDPR Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) as amended from time to time or any regulation replacing the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, and the relevant Israeli applicable data protection and privacy law. “EU” means the European Union;
- “EEA” means the European Economic Area. The GDPR applies to the European Economic Area (EEA), which includes all EU countries as well as Iceland, Liechtenstein and Norway;
- “GDPR” means EU General Data Protection Regulation 2016/679;
- “Services” means the Tagado’s proprietary Software-as-a-Service platform as defined in the Agreement;
- “Sub-processor” means any person (excluding an employee of Tagado or any of its sub-contractors) appointed by or on behalf of Tagado to Process Personal Data on behalf of Customer in connection with the Agreement;
- “Supervisory Authority” means (a) an independent public authority which is established by a member state of the European Union pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Legislation; and
- “Term” means the term of the Agreement, as defined therein.
- The terms “Controller”, “Processor”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, and “Processing” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. Processing of Customer Personal Data
2.1. The parties acknowledge that Customer is the Controller and that Tagado is acting in the capacity of a Processor. In some circumstances, Customer may additionally or alternatively be a Processor, in which case Customer appoints Tagado as an authorised sub-processor, which shall not change the obligations of the parties under this Addendum as Tagado will remain a Processor in any such event.
2.2. Tagado shall process Customer’s Personal Data on the documented instructions of Customer, unless otherwise required by an Applicable Law to which Tagado is subject. In which case, Tagado shall notify Customer if, in its opinion, any instruction infringes the Data Protection Legislation or other Union or Member State data protection provisions, unless that law prohibits such notification. Such notification will not constitute a general obligation on the part of Tagado to monitor or interpret the laws applicable to Customer, and such notification will not constitute legal advice to Customer.
2.3. Customer warrants that it has all the necessary rights to allow Tagado to Process Personal Data in relation to the Services, and that one or more lawful bases set forth in Data Protection Legislation support the lawfulness of the Processing.
2.4. Annex 1 to this Addendum sets out certain information as required by Article 28(3) of the GDPR according to which, Personal Data may be processed by Tagado. Customer warrants it is an accurate reflection of the Processing activities pursuant to this Addendum and the Agreement.
Without prejudice to any existing contractual arrangements between the parties, Tagado shall ensure that any person who it authorizes to Process the Personal Data on its behalf for the provision of the Service, shall be subject to a duty of confidentiality.
Taken into account the measures required by Article 32 of the GDPR, and the state of the art, the costs of implementation and nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural person, Tagado shall implement appropriate technical and organizational measures to ensure a level of security of the Processing of Personal Data appropriate to the risk. Such measures are detailed under Annex 2 and may be updated by Tagado from time to time, provided that such updates shall not materially decrease the protection of Personal Data for Data Subjects.
5.1. Customer authorizes Tagado to appoint (and permit each Sub-processor to appoint) Sub-processors listed under Annex 3 attached hereto, and in accordance with this Addendum and any restrictions in the Agreement.
5.2. Tagado shall inform Customer as soon as reasonably practicable of any intended changes concerning the addition or replacement of any of the Authorised Sub-Processors that will Process any Customer Personal Data (“New Sub-Processor”) which shall be detailed at: https://tagado.com/sub-processors. If, within 14 calendar days of receipt of that notice, Customer notifies Tagado in writing of any objections made on reasonable grounds, to the proposed appointment of a New Sub-Processor, the parties will endeavor to agree (acting reasonably), without undue delay, the commercially reasonable steps to be taken to ensure that the new Sub-processors is compliant with Article 28(4) of the GDPR. In the absence of a resolution, Tagado will make commercially reasonable efforts to provide Customer with the same level of service described in the Agreement, without using the objected Sub-Processor to Process Customer’s Personal Data.
5.3. Where the Customer reasonably argues, that the risks involved with the Sub-processing activities are still unacceptable, in the context of Article 28(4) and in relation to the appropriate steps, within the requisite time frame, and the parties are unable to resolve the issues within such time frame, Customer’s sole remedy will be to terminate the Agreement.
5.4. With respect to each Sub-processors, Tagado shall ensure that the Sub-processor is bound by data protection obligations compatible with those of the Data Processor under this Addendum.
6. Data Subject Rights
6.1. Customer shall comply with requests received from Data Subjects to exercise their rights pursuant to Chapter III of the GDPR and the Data Protection Legislation, with regard to accessing Customer’s Personal Data held by Tagado.
6.2. When Customer is unable to perform according to section 6.1, and therefore requires Tagado’s assistance, while taking into account the nature of the Processing, Tagado shall assist Customer, upon Customer’s request and at the Customer’s cost, by using appropriate technical and organizational measures, insofar as this is possible to comply with requests to exercise Data Subject rights, under the Data Protection Legislation.
7. Personal Data Breach
7.1. When Tagado becomes aware of a data breach that has a material impact on the Processing of Personal Data that is the subject to the Agreement, it shall notify Customer without undue delay about the data breach. Tagado shall cooperate with Customer and follow Customer’s reasonable instructions with regard to such data breach, to enable Customer to perform an investigation into the data breach, formulate a correct response and take suitable further steps in respect to the data breach.
7.2. Tagado shall, at Customer’s cost, cooperate with Customer and take the reasonable commercial steps which shall reasonably be instructed by Customer, to assist in the investigation and mitigation of every occurring Personal Data Breach.
8. Deletion or Return of Customer Personal Data
8.1. Subject to section 8.3, Customer may in its discretion by written notice to Tagado within 30 calendar days of the Cessation Date, require Tagado to (a) return a complete copy of all Customer’s Personal Data to the Customer; and (b) delete all other copies of Customer’s Personal Data Processed by any Sub-processor. Tagado shall comply with any such written request within 60 calendar days of the Cessation Date.
9. Audit Rights
9.1. Subject to section 9.2 and 9.3, Tagado shall make available to Customer upon a reasonable request, information which is reasonably necessary to demonstrate compliance with Article 28(3) of the GDPR.
9.2. Where applicable, if Customer is not otherwise satisfied by its audit rights pursuant to the Agreement, Tagado shall, at the Customer’s costs, allow for audits in relation to the Processing of the Customer’s Personal Data by Tagado, provided that:
9.2.1. Customer shall give Tagado a reasonable notice of any audit to be conducted; and
9.2.2. Customer shall take reasonable steps to ensure (and shall procure that each of its mandated auditors) to minimize disruption to Tagado’s business, in the course of such audit, while such audits shall be conducted during normal working hours.
9.3. Tagado may object to an auditor mandated by Customer if the auditor is, in Tagado’s opinion, not suitably qualified or independent, a competitor of Tagado, or otherwise manifestly unsuitable. In the event of such an objection, Customer shall appoint another auditor or conduct the audit itself.
10.1. Information may be transferred to third party companies and individuals to facilitate Tagado’s Services, who are located in a country outside of the EEA. To the extent that Tagado or its Sub-processors Processes Customer Personal Data in countries outside of the EEA that do not provide an adequate level of data protection, as determined by the European Commission or other adequate authority, the applicable model of the SCC shall apply and shall be incorporated herein upon execution of this Addendum by the parties or Tagado shall otherwise ensure that the continuity of protection of Personal Data shall be maintained for any respective onward transfers. With respect to each such data transfer, Tagado shall implement appropriate technical and organizational measures to ensure a level of security, appropriate to the risk, while taking into account the state of the art, costs of implementation and the nature, scope, context and purposes of Processing as well as the likelihood of a risk to the rights and freedoms of natural persons. Annex II of the SCCs shall be deemed completed with the information set out in Annex 2 to this Addendum.
10.2. To the extent that Tagado or Customer are relying on a specific statutory mechanism to normalize international data transfers and that mechanism is subsequently modified, revoked, or held in a court of a competent jurisdiction to be invalid, Tagado or Customer agree to cooperate in good faith to promptly suspend the transfer or to pursue a suitable alternate mechanism that can lawfully support the transfer.
11. General Terms
Order of Precedence
With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Agreement, the provisions of this Addendum shall prevail.
Changes in Data Protection Legislation
If any variation is required to this Addendum as a result of a change in Data Protection Legislation, then either party may provide written notice to the other party of that change of law. The parties shall discuss the change in Data Protection Legislation and negotiate in good faith with a view to agreeing on any necessary variations to this Addendum to address such changes, including any resulting charges.
Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.