Data Processing Agreement

This Data Processing Agreement (“Agreement”) is part of Terms of Service entering into forceby the day of accepting ToS by and between:

User as a Data Controller;

Volumo as a Data Processor;

(together as the “Parties”) WHEREAS

  1. The User acts as a Data Controller.
  2. This agreement consists of the following parts:
  3. Data Processing Agreement
  4. Annex 1 (List of processors)
  5. Annex 2 (Scope of data)
  6. Annex B (Data Transfer Agreement)
  7. Appendix 1 (to the Standard Contractual Clauses (DTA)
  8. Appendix 2 (Security Compliance Questionnaire - available on request)

IT IS AGREED AS FOLLOWS:

Definitions and Interpretation

  1. Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
  2. “Agreement” means this Data Processing Agreement and all Annexes;
  3. “Controller’s Personal Data” means any Personal Data Processed by a Processor and/or Sub-processor on behalf of Controller pursuant to or in connection with the Services Agreement;
  4. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
  5. “EEA” means the European Economic Area;
  6. “EU Data Protection Laws” means the GDPR and laws implementing or supplementing the GDPR;
  7. “EU Standard Contractual Clauses” means the terms pursuant to the European Commission’s decision of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
  8. “GDPR” means EU General Data Protection Regulation 2016/679;
  9. “Data Transfer” means:
  10. “Services” means the services the Processor provides;
  11. “Sub-processor” means any person appointed by or on behalf of a Processor to process Personal Data on behalf of the Controller in connection with the Agreement.
  12. The terms, “Commission”, “Controller”, “(Data) Processor”, “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.

Scope and Applicability

Applicability. This DPA applies where and only to the extent that Volumo processes Personal Data on behalf of the User in the course of providing the Services and such Personal Data is subject to Data Protection Laws of the State of California, the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.

User Obligations. User agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to Processor; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Volumo to process Personal Data and provide the Services pursuant to the Agreement and this DPA.

Nature of the Data. Volumo handles Data provided by the User. Such Data may contain special categories of data depending on how the Services are used by the User. The Data may be subject to the following process activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to Customer, to provide customer and technical support to User and (iii) disclosures as required by law or otherwise set forth in the Agreement.

The subject matter, nature and purpose of the Processing of Controller’s Personal Data pertains to the provision of Services, as requested by the Controller.

The categories of Data Subjects whose Personal Data will be Processed by the respective Processor include: user and artist according to the Privacy Notice.

Processing of Controller Personal Data

Processor shall:

Reliability and Non-Disclosure

Non-disclosure obligations. Processor shall take all the reasonable steps to ensure the reliability of any employee, agent or contractor of any Sub-processor who may have access to the Controller Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Controller’s Personal Data, as strictly necessary for the purposes of the Agreement, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality. The Processor must ensure that all individuals which have a duty to process controller personal data:

Personal Data Security

Volumo shall implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk. Such measures must ensure a level of security appropriate to the risk and include measures which:

Sub-processing

Authorized Sub-processors. User agrees that Volumo may engage Sub-processors to process Personal Data on User’s behalf. The Sub-processors currently engaged by Volumo and authorized by User are listed in Annex A. Objection to Sub-processors. User may object in writing to Volumo’s appointment of a new Sub-processor on reasonable grounds relating to data protection by notifying Volumo promptly in writing within five (5) calendar days of receipt of Volumo’s notice in accordance with Section 3.3. Such notice shall explain the reasonable grounds for the objection. In such event, the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If this is not possible, either party may terminate the applicable Services that cannot be provided by Volumo without the use of the objected-to-new Sub-processor.

  1. Subprocessor’s obligations under this DPA:

Data Subject Rights

The Controller is primarily responsible for handling and responding to requests made by data subjects. Assistance. Processor shall assist the Controller to fulfill the Controller’s obligations, as reasonably understood by Controller, to respond to requests to exercise Data Subject rights of access, right to rectification, restriction of processing, erasure, data portability, object to the processing of his/her rights not to be subject to an automated individual decision making. With regards to the Data Subject rights, Processor shall:

Personal Data Breach

Notification. Processor shall notify Controller without undue delay, but not later than twenty-four (24) hours, upon Processor becoming aware of a Controller’s Personal Data Breach. Such notification shall as a minimum describe:

Data Protection Impact Assessment (Prior Consultation) and Audits

Assistance. Processor shall provide reasonable assistance to the Controller with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities.

Records maintenance. Volumo shall maintain records of its security standards. Upon User’s written request, Volumo shall provide (on a confidential basis) copies of relevant external ISMS certifications, audit report summaries and/or other documentation reasonably required by User to verify Volumo’s compliance with this DPA. Volumo shall further provide written responses (on a confidential basis) to all reasonable requests for information made by User, including responses to information security and audit questionnaires, that User (acting reasonably) considers necessary to confirm Volumo’s compliance with this DPA, provided that User shall not exercise this right more than once per year.

Erasure or return of Controller Personal Data

Volumo shall promptly and, in any event within sixty (60) calendar days of the earlier of: (i) cessation of Processing of Controller Personal Data by Processor; or (ii) termination of the Services Agreement, all Personal Data shall be deleted, save that this requirement shall not apply to the extent Volumo is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which such Personal Data Volumo shall securely isolate and protect from any further processing, except to the extent required by applicable law.

Data Transfer

Grounding. Volumo may, in performing their obligations under this Agreement, transfer Personal Data to countries outside the EEA only to the extent that i) the Controller has provided its prior written approval; or ii) such country provides an adequate level of protection as contemplated by Data Protection Laws; or iii) where Volumo has put in place adequate safeguards to protect the Controller’s Personal Data, as required by Data Protection Laws, such as by ensuring that any such transfer of Personal Data is governed by the EU Standard Contractual Clauses.

Data Transfer Agreement. The Controller (“data exporter”) and the Volumo (“data importer”) hereby enter into, as of the Effective Date, the EU SCC, as set out in Annex B, attached hereto and which are incorporated by reference and constitute an integral part of this Agreement. The Parties are deemed to have accepted and executed the EU Standard Contractual Clauses in their entirety, including the appendices.

Liability

Processor shall be fully liable to the Controller for any breach of the Services Agreement or this Agreement, and the obligations set out therein, including by any Sub-processor, without prejudice to the liability of Processor in accordance with the Data Protection Laws.

Indemnification

Processor agrees to indemnify and hold harmless Controller and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind which Controller may sustain as a consequence of any breach by the Processor (or the Sub-processors, as the case may be) of the provisions of this Agreement and its appendices.

General Terms

This DPA is a part of and incorporated into the Terms of Service. If there is any conflict between this DPA and the Terms of Service, this DPA shall prevail to the extent of that conflict. In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise. This DPA, excluding the Standard Contractual Clauses, shall be governed by the law of Estonia and GDPR, unless required otherwise by Data Protection Laws. Subject to this section, the parties agree that this Agreement and the Standard Contractual Clauses shall terminate automatically upon expiry or termination of the Terms of Service. All notices and communications given under this Agreement must be sent by 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 (List of processors)

Available upon request.

Annex 2 (Scope of data)

A. LIST OF PARTIES

Data exporter(s):

User under the Terms of Services (Label or Distributor under Privacy Notice)

Role: Controller

Data importer(s):

Name: Volumo Music OÜ
Address: Ahtri tn 12, 10151, Tallinn, Estonia
Contact person’s name, position and contact details: Oleksandr Dzyubenko, alex@volumo.com

Activities relevant to the data transferred under these Clauses: 1. profiling 2. structuring of the data 3. promotion of data 4. analytics 5. statistics 6. marketing activities 7. customization of service 8. security obligations 9. compliance with legal obligation 10. account administration

Role: Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

  1. artist
  2. representative of the User

Categories of personal data transferred

  1. name
  2. surname
  3. email
  4. photo
  5. address
  6. social media links
  7. biography
  8. payment (bank information, card details)
  9. company data

The frequency of the transfer: on a continuous basis during the performance of a contract.

Nature of the processing: systematic and regular

Purpose of the data transfer and further processing: performance on the contract, artist promotion.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: duration of the contract and 36 months after. Same period for sub-processors.

C. COMPETENT SUPERVISORY AUTHORITY

The Data Protection Inspectorate

Contacts: 39 Tatari St., 10134 Tallinn.

E-mail: info@aki.ee

Annex B (Data transfer agreement)

Standard Contractual Clauses

Clause 1

Definitions

For the purposes of the Clauses:

  1. ’personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  2. ’the data exporter’ means the controller who transfers the personal data;
  3. ’the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  4. ’the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ’the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established
  6. ’technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

  1. The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destructionor accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4.

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

Clause 6

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter (controller) for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
  3. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
  4. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
  2. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  3. to refer the dispute to the courts in the Member State in which the data exporter is established.
  4. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law. Clause 8 Cooperation with supervisory authorities
  5. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  6. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  7. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9

Governing law

  1. The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely Estonia.

Clause 10

Variation of the contract

  1. The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Sub-processing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses (3). Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely Estonia.
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data-processing services

  1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1

  1. This Appendix forms part of the Clauses and must be completed and signed by the parties.
  2. Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Also it is necessary to implement:

Liability

  1. The parties agree that if one party is held liable for a violation of the clauses committed by the other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost, charge, damages, expenses or loss it has incurred.
  2. Indemnification is contingent upon:

Appendix 2 - Security Compliance Questionnaire

  1. This Appendix forms part of the DPA and must be accepted and signed by the parties if it is applicable to them.
  2. Applicable to:
  3. Available upon request.