Data Protection Addendum

Last updated on December 21, 2020

This Data Processing Addendum ("DPA") is supplemental to the Agreement (comprising the Terms of Service or other written or electronic agreement) (“Agreement”) separately entered into between PageFly ( “us” or “we”) and Customer (each, a “Party,” and collectively, the “Parties”) for the provision of the Service and establishes additional responsibilities of the Parties for the Processing of Customer Personal Information in compliance with the CCPA and/or Personal Data in accordance with the requirements of EU Data Protection Laws.

Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms of Service for products and services between PageFly and the Controller (the “Principal Agreement”). Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.

Except where the context requires otherwise, references in this Agreement to the Principal Agreement are to the Principal Agreement as amended by, and including, this Agreement.

1. Definition

1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

• 1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;
• 1.1.2 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;
• 1.1.3 “Contracted Processor” means a Subprocessor;
• 1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
• 1.1.5 “EEA” means the European Economic Area;
• 1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
• 1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
• 1.1.8 “Data Transfer” means:
• 1.1.8.1 a transfer of Company Personal Data from the Company to a Contracted Processor; or
• 1.1.8.2 an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
• 1.1.9 “Services” means the Shopify page building services the Company provides.
• 1.1.10 “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.

1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Company Personal Data

2.1 Processor shall:

• 2.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
• 2.1.2 not Process Company Personal Data other than on the relevant Company’s documented instructions.

2.2 The Company instructs Processor to process Company Personal Data.

2.3 You acknowledge and agree that PageFly retains a Subprocessor for cloud storage of data 

3. Processor Personnel

Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Subprocessing

5.1. Controller acknowledges and agrees that PageFly has appointed Amazon Web Services as a Subprocessor for cloud storage of data.

5.2 With respect to Amazon Web Services, PageFly shall: ensure that the Subprocessor offers at least the same level of protection for Controller Personal Data as those set out in this Agreement and meet the requirements of article 28(3) of the GDPR

6. Data Subject Rights

6.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfillment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2 Processor shall:

• 6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
• 6.2.2 ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach

7.1 Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2 Processor shall cooperate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment and Prior Consultation

Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9. Deletion or return of Company Personal Data

9.1 Subject to this section 9, when Controller requests deletion of Company Personal Data that Processor collects to Shopify and Shopify notify Processor via webhooks (the process is described on https://shopify.dev/tutorials/add-gdpr-webhooks-to-your-app), Processor shall promptly confirm their receipt of the request and complete the action within 30 days of receipt (unless Processor is legally required the retain the data).

10. Audit rights

10.1 Subject to this section 10, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.

10.2 Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11. Data Transfer

11.1 When the Customer allows to track Company Personal Data of individuals in the Europe in their Shopify store settings (the Setting can be found in Shopify Admin > Preferences > Customer Privacy: https://www.shopify.com/admin/online_store/preferences), and agrees to use our Analytics feature, the Customer acknowledges and agrees that PageFly may transfer Company Personal Data to a region outside the EU and/or the European Economic Area (EEA), including to the United States, as part of the data cloud storage service with the Subprocessor.

All Processing of Personal Data in countries which do not ensure an adequate level of data protection per the European Commission’s decision of 5 February 2010 is on the basis of and subject to the Standard Contractual Clauses.

For the purpose of the Standard Contractual Clauses, this DPA and PageFly's Terms of Service are the complete and final instructions of Customer (Data Exporter) to PageFly (Data Importer) for the Processing of Personal Data. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the Data Exporter hereby instructs the Data Importer to process Company Personal Data: (a) in accordance with the Agreement; (b) at the request of Data Exporter, including via the Services; and (c) as initiated by Data Subjects accessing the Services for or at the instruction of Data Exporter. For the purposes of Clause 5(h) of the Standard Contractual Clauses, Data Exporter consents to Data Importer’s use of Subprocessors in accordance with Section 5 of this DPA. The parties agree that Data Importer’s satisfaction of its obligations in Sections 4, 6 and 9 will be deemed to satisfy its obligations under Clause 12(1), and that the certification of deletion of Personal Data described in Clause 12(1) will be provided upon Data Exporter’s written request.

11.2 The Standard Contractual Clauses are hereby deemed completed as follows: (i) the Data Exporter is the Customer, and the Data Exporter’s contact information is set forth in the signature block below; (ii) the Data Importer is PageFly, and PageFly’s contact information is set forth in the signature block below (iii) Appendices 1 and 2 of the Standard Contractual Clauses are set forth below. By entering into this DPA, the parties are deemed to be signing the Standard Contractual Clauses.

12. General Terms

12.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

• (a) disclosure is required by law;
  
• (b) the relevant information is already in the public domain.

12.2 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.

ANNEX 1

Details of the processing of personal data

Addendums

California Consumer Privacy Act Addendum – can be found at https://pagefly.io/pages/california-consumer-privacy-act-addendum

If you have any request or further questions about this DPA, kindly send an email to happytohelp@pagefly.io