Data processing addendum
This Recharge Data Processing Addendum (“Addendum”) amends the Recharge Terms of Service (the “Agreement”) by and between the individual or legal entity subject to the Agreement (“Customer”) and Recharge Inc (“Recharge”), a United States, California corporation with offices at 1507 20th St., Santa Monica, CA 90404. Capitalized terms not otherwise defined in this Addendum shall have the same definitions as in the Agreement.
1.1 “Business”, “Commercial Purpose”, “Data Processor”, “Processor”, “Processing”, “Sell”, “Service Provider”, “Subprocessor”, and “Supervisory Authority” shall be given the meanings given to them by the applicable Data Protection Legislation.
1.2 “CCPA” means the California Consumer Privacy Act of 2018 and any binding regulations promulgated thereunder.
1.3 “Data Subject” means the identified or identifiable natural person to whom Personal Data relates.
1.4 “Data Subject Request” means the exercise by Data Subjects of their rights in accordance with applicable Data Protection Legislation in respect of Personal Data.
1.5 “Data Protection Legislation” means the GDPR and the CCPA, in each case, to the extent applicable to the relevant Personal Data or Processing thereof under the Agreement.
1.6 “GDPR” means: (i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“EU GDPR”); (ii) the EU GDPR as it forms part of United Kingdom (“UK”) law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); and (iii) any applicable implementing or supplementary legislation in any member state of the EEA or the UK (including the UK Data Protection Act 2018).
1.7 “International Data Transfer” means any transfer of Personal Data from the EEA, Switzerland or the United Kingdom to an international organization or to a country outside of the EEA, Switzerland and the United Kingdom.
1.8 “Personal Data” means information that constitutes “Personal Data,” “Personal Information,” or similar information governed by applicable Data Protection Legislation that Recharge Processes pursuant to the Agreement. Notwithstanding the foregoing sentence, Personal Data does not include information that Recharge Processes in the context of services that it provides directly to a consumer.
1.9 “Personal Data Breach” means a breach of Recharge’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data in Recharge’s possession, custody or control. Personal Data Breaches do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.
1.10 “Service” means those services and activities to be supplied to or carried out by or on behalf of Recharge for Customer pursuant to the Agreement.
1.11 “Standard Contractual Clauses” means clauses annexed to EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (OJ L 39, 12.2.2010, p. 5-18).
2. Data Protection
2.1. As part of providing the Service, Data Subject’s Personal Data will be Processed in the United States. Such Processing will be completed in compliance with relevant Data Protection Legislation.
2.2. When Recharge Processes Personal Data in the course of providing the Service, Recharge will:
2.2.1. Process the Personal Data as a Data Processor, for the purpose of providing the Service in accordance with documented instructions from you (provided that such instructions are commensurate with the functionalities of the Service), to perform Recharge’s obligations and exercise Recharge’s rights under the Agreement, including to maintain records relating to the Service and comply with any legal or self-regulatory obligations relating to the Service, and as may subsequently be agreed to by you. If Recharge is required by law to Process the Personal Data for any other purpose, Recharge will provide you with prior notice of this requirement, unless Recharge is prohibited by law from providing such notice;
2.2.2. notify you if, in Recharge’s opinion, your instruction for the Processing of Personal Data infringes applicable Data Protection Legislation;
2.2.3. notify you promptly, to the extent permitted by law, upon receiving an inquiry or complaint from a Supervisory Authority relating to Recharge’s Processing of the Personal Data;
2.2.4 provide Customer with such assistance as may be reasonably necessary and technically feasible to assist Customer in fulfilling its obligation to respond to Data Subject Requests. Customer shall compensate Recharge for any such assistance at Recharge’s then-current professional services rates, which shall be made available to Customer upon request. If Recharge receives a Data Subject Request, Recharge may advise the Data Subject to submit the request to Customer and Customer will be responsible for responding to any such request;
2.2.5. implement and maintain appropriate technical and organizational measures designed to protect the Personal Data against unauthorized or unlawful Processing and against accidental loss, destruction, damage, theft, alteration or disclosure (as described in Appendix 2). The security measures shall be appropriate to the harm which might result from any unauthorized or unlawful Processing, accidental loss, destruction, damage or theft of Personal Data and appropriate to the nature of the Personal Data which is to be protected. Recharge may update the security measures from time to time, provided the updated measures do not materially decrease the overall protection of Personal Data;
2.2.6. provide you, upon your written request, with up-to-date attestations, reports or extracts thereof, where available, from a source charged with auditing Recharge’s data protection practices (e.g. external auditors, internal audit, data protection auditors), or suitable certifications, to enable you to assess compliance with the terms of this Addendum;
2.2.7. notify you promptly upon becoming aware of and confirming any Personal Data Breach;
2.2.8. ensure that its personnel who access the Personal Data are subject to confidentiality obligations that restrict their ability to disclose the Personal Data; and
2.2.9. upon termination of the Agreement, Recharge will promptly initiate its process to delete or anonymize the Personal Data. If you request a copy of such Personal Data within 60 days of termination, Recharge will provide you with a copy of such Personal Data.
2.3. In the course of providing the Service, you acknowledge and agree that Recharge may use Subprocessors to Process the Personal Data. Recharge’s use of any specific Subprocessor to Process the Personal Data must be in compliance with Data Protection Legislation and must be governed by a contract between Recharge and the Subprocessor.
2.4. Customer hereby authorizes Recharge to perform International Data Transfers to any country on the basis of an adequacy decision by the European Commission as provided in Article 45 GDPR; on the basis of appropriate safeguards in accordance with Data Protection Legislation; or pursuant to the Standard Contractual Clauses referred to in this Section 2.4. By signing this Addendum, Customer and Recharge conclude the Standard Contractual Clauses, which are hereby incorporated into this Addendum and completed as follows: Customer is the “data exporter”; Recharge is the “data importer”; the governing law in Clause 9 and Clause 11.3 of the Standard Contractual Clauses is the law of the country in which Customer is established; Appendix 1 and Appendix 2 to the Standard Contractual Clauses, are Appendix 1 and 2 to this Addendum respectively; and the optional indemnification clause is struck. If Recharge’s compliance with Data Protection Legislation applicable to International Data Transfers is affected by circumstances outside of Recharge’s control, including if a legal instrument for International Data Transfers is invalidated, amended, or replaced, then Customer and Recharge will work together in good faith to reasonably resolve such non-compliance.
2.5 Customer acknowledges and agrees that Recharge may create and derive from Processing related to the Agreement, deidentified, anonymized and/or aggregated data that does not identify Customer or any natural person and use, publicize, or share with third parties such data to improve Recharge’s products and services and for its other legitimate business purposes.
3.1. In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail. For avoidance of doubt and to the extent allowed by applicable law, any and all liability under this Addendum, including limitations thereof, will be governed by the relevant provisions of the Agreement. You acknowledge and agree that Recharge may amend this Addendum from time to time by posting the relevant amended and restated Addendum on Recharge’s website, available at https://rechargepayments.com/dpa/ and such amendments to the Addendum are effective as of the date of posting. Your continued use of the Service after the amended Addendum is posted to Recharge’s website constitutes your agreement to, and acceptance of, the amended Addendum. If you do not agree to any changes to the Addendum, please cease your use of the Service immediately.
3.2. Save as specifically modified and amended in this Addendum, all of the terms, provisions and requirements contained in the Agreement shall remain in full force and effect and govern this Addendum. If any provision of the Addendum is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Addendum shall remain operative and binding on the parties.
3.3. The terms of this Addendum shall be governed by and interpreted in accordance with the laws of the State of California and the laws of the United States applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of California with respect to any dispute or claim arising out of or in connection with this Addendum.
Appendix 1 – Data Processing Details
This Appendix includes certain details of the Processing of Personal Data: (i) as required by Article 28(3) GDPR; and (ii) where applicable, to populate Appendix 1 to the Standard Contractual Clauses.
Recharge provides a subscriptions management platform.
Subject matter and duration of the Processing of Personal Data
The subject matter and duration of the Processing of Personal Data are set out in the Agreement and the Addendum.
The nature and purpose of the Processing of Personal Data
The nature and purpose of the Processing is Recharge’s provision of the Service.
The categories of Personal Data to be Processed
Personal Data that Recharge receives as described at: https://rechargepayments.com/privacy-policy/.
The categories of Data Subjects to whom Personal Data relates
- Data subjects about whom Recharge collects Personal Data in its provision of Service as a Processor, including Customer’s customers.
- Data subjects about whom Personal Data is transferred to Recharge in connection with its Service as a Processor by, at the direction of, or on behalf of Customer, including Customer’s customers.
Appendix 2 – Security Measures
As from the effective date of the Addendum, Recharge will implement and maintain the security measures set out in this Annex 3 (“Security Measures”).
- Service endpoint encryption
- Encryption or obfuscation of data at rest
- Role Based Access Controls
- Virtual Private Networking for access to internal systems
- Centralized Authentication and Authorization
Recharge may update or modify such Security Measures from time to time, provided that such updates and modifications do not materially decrease the overall security of the Service.