Data Processing

StadiumADS

This Data Processing Addendum, including its Schedules, (“DPA”) supplements and forms an integral part of the agreement as governed by the MARKETU Terms of Service available at https://www.stadiumads.io/terms (“Terms”) or any other agreement between Customer and the applicable MARKETU contracting entity (“MARKETU”) governing the use and access of the Product (“Agreement”). This DPA reflects the parties’ agreement with regard to the Processing of Personal Data by MARKETU on behalf of the Customer in connection with the Product. Unless otherwise defined in this DPA or the Agreement, all capitalized terms used in this DPA will have the meanings given to them in Section 1 of this DPA.

1. Definitions

CCPA means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.

Controller means the entity which determines the purposes and means of the Processing of Personal Data.

Customer means the legal entity that is a party to the Agreement with MARKETU.

Data Protection Legislation means all laws and regulations applicable to the Processing of Personal Data under the Agreement.

Data Subject means the identified or identifiable person to whom Personal Data relates.

EEA means the European Economic Area.

GDPR means Regulation 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).

Personal Data means any information relating to an identified or identifiable natural person where such data is Processed by MARKETU on behalf of Customer.

Processing (and all verb tenses) means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

Processor means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA.

Sub-Processor means a Processor engaged by MARKETU.

Standard Contractual Clauses means Schedule 4 attached to and forming part of this DPA 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.

Supervisory Authority means an independent public authority which is established by an EU member state pursuant to the GDPR.

2. Processing of Personal Data

2.1

Scope, Roles and Details of the Processing. This DPA, including any Schedules, applies when Personal Data is processed by MARKETU pursuant to the Agreement. Regarding the Processing of Personal Data, Customer is the Controller, MARKETU is the Processor and MARKETU will engage Sub-Processors pursuant to the requirements set forth in Section 6 below. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 to this DPA.

2.2

Customer’s Processing of Personal Data. Customer shall, in its use of the Product, Process Personal Data in accordance with the requirements of Data Protection Legislation, including any applicable requirement to provide notice to Data Subjects of the use of MARKETU as Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Legislation. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer specifically acknowledges that its use of the Product will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.

2.3

MARKETU Processing of Personal Data. MARKETU shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); and (ii) Processing initiated by Users in their use of the Product.

3. Instructions

3.1

Customer Affiliates. Customer represents that it is authorized to give data processing instructions to MARKETU and to otherwise act on behalf of any Customer Affiliates under this DPA.

3.2

Documented Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement with MARKETU for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately and in writing.

3.3

Exception. If MARKETU is required by law to conduct additional processing, it shall inform Customer of that legal requirement before Processing, unless such notification is prohibited by law.

3.4

Instructions likely to violate Data Protection Legislation. If, in MARKETU’s opinion, Customer’s instructions are either likely to violate Data Protection Legislation, MARKETU is entitled to refuse to follow such instructions and shall inform Customer of the reasons for its refusal. In such cases, Customer shall provide alternative instructions in a timely manner and MARKETU may cease all Processing of the impacted Personal Data (other than secure storage thereof) until it receives acceptable instructions.

4. MARKETU Personnel

4.1

Confidentiality Obligations. MARKETU ensures that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, and have executed written confidentiality agreements.

4.2

Limited Access. MARKETU ensures that MARKETU’s access to Personal Data is limited to those personnel performing services in accordance with the Agreement.

4.3

Data Protection Officer. MARKETU has appointed a data protection officer (“DPO”). The appointed DPO may be reached at legal@stadiumads.io.

5. Security of Processing

5.1

Measures. MARKETU has implemented and shall maintain appropriate technical and organizational measures to protect Personal Data against accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure, and access (“Security Measures”), as described in Schedule 3 of this DPA, including as appropriate:

the pseudonymisation and encryption of Personal Data;
the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of Processing systems;
subject to the Service Level Agreement, the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
the regular testing, assessment, and evaluation of the effectiveness of the Security Measures.

5.2

Customer has made an independent determination as to whether these Security Measures meet the Customer’s requirements.

5.3

Third Party Certifications. MARKETU has obtained third party certifications as set forth in Schedule 3 of this DPA. Upon Customer’s written request, but not more than once per year, and subject to the confidentiality obligations set forth in the Agreement, MARKETU shall make available to Customer a copy of MARKETU’s then most recent third-party certification and audit report, as applicable.

6. Sub-Processors

6.1

General Authorization. Customer agrees that MARKETU may use Sub-Processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf.

6.2

Sub-Processor Obligations. MARKETU will enter into a written agreement with the Sub-Processor and, to the extent that the Sub-Processor is performing the same Processing activities that are being provided by MARKETU, MARKETU will impose on Sub-Processors data protection obligations not less protective than those in this DPA.

6.3

Sub-Processor List. MARKETU currently uses the Sub-Processors listed in Schedule 2 to this DPA.

6.4

Objection Right. Customer may object to the use of a new Sub-Processor on a reasonable and legitimate basis. In the event Customer objects to a new Sub-Processor, Customer shall provide written notice to legal@stadiumads.io within the 7 calendar day notice period set out in Section 6.3 outlining Customer’s specific concerns about the new Sub-Processor in order to give MARKETU the opportunity to address such concerns. MARKETU may, at its sole discretion, (i) not appoint the Sub-Processor and/or propose an alternate Sub-Processor; (ii) take the steps to address the Customer’s specific concerns and obtain Customer’s written consent to use the Sub-Processor; or (iii) make available to Customer the MARKETU Product(s) without the particular aspect that would involve use of the objected-to Sub-processor. If MARKETU is unable or determines in its reasonable judgment, that it is commercially unreasonable to do any of the options in Section 6.4 (i)-(iii), Customer may terminate the Agreement in accordance with section 19.3 of the Terms.

6.5

Liability. MARKETU will remain responsible for the performance of a Sub-Processor to the same extent MARKETU would be responsible if performing the services of each Sub-Processor directly under the terms of this DPA.

7. Rights of Data Subject

MARKETU will, to the extent legally permitted, notify Customer without undue delay if MARKETU receives a request from a Data Subject to exercise the Data Subject’s rights set forth in Data Protection Legislation, especially Chapter III of GDPR (“Data Subject Request”). Taking into account the nature of the Processing, MARKETU will assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to Data Subject Requests under Data Protection Legislation. To the extent Customer is unable to address a Data Subject Request, MARKETU will upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request. To the extent legally permitted, Customer will be responsible for any costs arising from MARKETU’s provision of such assistance.

8. Assistance

Taking into account the nature of Processing and the information available to MARKETU, MARKETU will provide reasonable assistance and cooperation to Customer in respect of its relevant obligations under Articles 32 to 36 GDPR. To the extent legally permitted, Customer will be responsible for any costs arising from MARKETU’s provision of such assistance.

9. Personal Data Breach Notification

MARKETU will notify Customer without undue delay, but always within 48 hours, after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed by MARKETU or its Sub-Processors of which MARKETU becomes aware (“Personal Data Breach”). Notification of Personal Data Breaches, if any, will be delivered by email at the email address specified for notices in the applicable Order Form, if no email address is specified, to one or more of Customer’s Product administrators. MARKETU’s obligation to notify Customer of a Personal Data Breach is not an acknowledgement by MARKETU of any fault or liability with regard to the Personal Data Breach. The obligations under this Section 9 do not apply to incidents that are caused by Customer or its Users.

10. Return and Deletion of Personal Data

10.1

Upon Customer’s request to legal@stadiumads.io, MARKETU will return or delete Personal Data in accordance with the timeframes specified in the Agreement, unless European Union law or the laws of an EU member state requires that MARKETU retains the Personal Data. MARKETU may delete Personal Data six months after termination or expiration of the Agreement. MARKETU shall dispose Personal Data in accordance with the latest method(s) of data sanitizing, as detailed in NIST 800-88 (“Guidelines for Media Sanitization”).

10.2

Notwithstanding anything to the contrary in this DPA, MARKETU may retain Personal Data if and for as long as required by law.

10.3

Personal Data stored in MARKETU’s auto-backup or archival systems will be deleted automatically after 180 days after back-up, or otherwise as soon as technically possible.

10.4

If Customer provides Personal Data on a hard drive or other forms of removable media, such removable media must be encrypted or password protected. In collaboration with Customer, MARKETU shall either return the removable media to Customer, or securely destroy such removable media by using a certified third party. A certificate of destruction can be made available to Customer upon request.

11. Customer Audits

11.1

Customer Audit. If Customer substantiates that the Summary Report cannot satisfactorily demonstrate MARKETU’s compliance and that it has a justifiable suspicion that MARKETU is in breach of this DPA, Customer may conduct an audit on MARKETU’s premises, not more than once per year, and subject to the confidentiality obligations set forth in the Agreement and following conditions:

Customer must provide at least 30 days’ prior written notice to legal@stadiumads.io. Such notice must indicate the reasons for the audit request, and will be effective upon MARKETU’s confirmation of receipt.
Audits will be conducted within a mutually agreed scope, duration, and timing; performed by Customer, or a third party that is pre-approved by MARKETU, such approval not to be unreasonably withheld; and conducted within MARKETU’s normal business hours and with best efforts taken to avoid disruption of MARKETU’s business operations.

11.2

Cost. The cost of an audit on MARKETU’s premises will be borne by Customer, unless a Material Breach (as defined in the Agreement) of this DPA is found, in which case MARKETU will bear the costs.

11.3

Nothing in this Section 11 varies or modifies the Standard Contractual Clauses nor affects any Supervisory Authority’s or Data Subject’s rights under the Standard Contractual Clauses.

12. Transfers of Personal Data to Third Countries

12.1

Regions. Customer may specify the location where Customer Data, including Personal Data, will be Processed in the Agreement (“Region”). Except as necessary to provide the Product and services initiated by Customer, or as necessary to comply with the law, MARKETU will not transfer Personal Data from Customer’s selected Region. A transfer to a third country shall take place only if the conditions of Chapter V. GDPR are complied with.

12.2

Application of Standard Contractual Clauses. MARKETU will enter into Standard Contractual Clauses with each affiliate and/or Sub-Processor where the Processing of Personal Data is transferred outside the EEA, either directly or via onward transfer, to any third country not recognized by the European Commission as providing an adequate level of protection for Personal Data. Customer hereby authorizes MARKETU to enter into Standard Contractual Clauses (also) on its behalf and commissions MARKETU to enforce them against the relevant Sub-Processor on the Customer’s behalf where appropriate. The Standard Contractual Clauses will not apply to Personal Data that is not transferred, either directly or via onward transfer, outside the EEA.

12.3

Order of precedence. If the Standard Contractual Clauses apply, nothing in this Section 12 varies or modifies the Standard Contractual Clauses.

13. Limitation of liability

Each party’s liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

14. Entire Agreement, Hierarchy

Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will take precedence to the extent of such conflict.

15. Term and termination

This DPA shall enter into force at the same time as the Agreement and shall automatically terminate upon any termination or expiration of the Agreement.