This Affiliate Program Operating Agreement (the “Agreement”) is made and entered into by and between Grandmobi Ltd (“Grandmobi” or “we”), and you, (“you” or “User”) the party submitting an application to become an Grandmobi user. The terms and conditions contained in this Agreement apply to your participation with portal.grandmobi.net (“Affiliate Program”). Each Affiliate Program campaign (a “Campaign”) may be for any offering by Grandmobi or a third party (each such third party a “Client”) and may link to a specific web site for that particular Campaign (“Program Web Site”). Furthermore, each Campaign may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in a Campaign, you expressly consent to all the terms and conditions of this Agreement.
1. Enrollment in the Affiliate Program
You must submit an Affiliate Program application from our website. You must accurately complete the application to become a User (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason. By submitting an application to Affiliate Program, you agree to receive Grandmobi daily newsletters, press releases and updates via emails.
2. OBLIGATIONS OF THE PARTIES
Subject to our acceptance of you as a User and your continued compliance with the terms and conditions of this Agreement, Grandmobi agrees as follows:
We will make available to you via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links”) which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site.
We will pay User for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by Grandmobi and (v) is not later determined by Grandmobi to be fraudulent, incomplete, unqualified or a duplicate.
We will pay you any Commissions earned monthly, provided that your account is currently greater than $250. Accounts with a balance of less than $250 will roll over to the next month, and will continue to roll over monthly until $250 is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
Payment for Commissions is dependent upon Clients providing such funds to Grandmobi, and therefore, you agree that Grandmobi shall only be liable to you for Commissions to the extent that Grandmobi has received such funds from the Clients. You hereby release Grandmobi from any claim for Commissions if Grandmobi has not received such funds from the Clients.
Grandmobi’s technology and systems are the official counter for determining delivery of leads and Commissions. No other measurements or statistics of any kind shall be accepted by Grandmobi or have any effect under these Terms and Conditions. User understands that Grandmobi pays monthly. You understand that you need to raise an invoice and send it to Grandmobi, and that the payment amount is calculated by Grandmobi’s systems. Furthermore you agree that you will not raise any invoices against Grandmobi based on your own statistics. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Grandmobi in its sole discretion. In the event that User disputes in good faith any portion of an invoice, User must submit that dispute to Grandmobi in writing and in sufficient detail within thirty (30) days of the date on the invoice. If User does not dispute the invoice as set forth herein, then User agrees that it irrevocably waives any claims based upon that invoice. In the event that User is also tracking Qualified Actions and User claims a discrepancy, User must provide Grandmobi with User’s reports within three (3) days after 30th day of the calendar month, and if Grandmobi’s and User’s reported statistics vary by more than 10% and Grandmobi reasonably determines that User has used generally accepted industry methods to track Qualified Actions, then Grandmobi and User agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Grandmobi’s numbers shall govern.
If User has an outstanding balance due to Grandmobi under this Agreement or any other agreement between the User and Grandmobi, whether or not related to the Affiliate Program, User agrees that Grandmobi may offset any such amounts due to Grandmobi from amounts payable to User under this Agreement.
User also agrees to:
Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that Grandmobi informs you that it considers objectionable (collectively, “Objectionable Content”).
Not make any representations, warranties or other statements concerning Grandmobi or Client or any of their respective products or services, except as expressly authorized herein.
Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by Grandmobi or Clients or a part of the Program Web Site, without prior written permission from us.
Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
Comply with the terms, conditions, guidelines and policies of any third party services used by User in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
Always prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Affiliate Program and the provision of such personally identifiable information to Grandmobi and Clients for use as intended by Grandmobi and Clients.
Always prominently post and make available to end-users any terms and conditions in connection with the Campaign set forth by Grandmobi or Client, or as required by applicable laws regarding such Campaigns.
Make sure to not place Grandmobi ads on any online auction platform (i.e. eBay, Amazon, etc).
The following additional program-specific terms shall apply to any promotional programs set forth below:
Email Campaigns. For all email campaigns, User must download the “Suppression List” from the Campaigns section of Grandmobi. User shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. Grandmobi will provide an opt-out method in all Links, however, if any opt-out requests come directly to User, User shall immediately forward them to Grandmobi at partners@grandmobi.com. User’s emails containing the Links may not include any content other than the Links, except as required by applicable law. User agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to Grandmobi pursuant to this Agreement or otherwise. User further agrees that it will not mail or market to any suppression files generated through the Grandmobi network, and that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to Grandmobi pursuant to this Agreement or otherwise.
Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by Grandmobi in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as User served in the title bar of the window and any client-side ad serving software used by User shall only have been installed on an end-user’s computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-english end user license agreement and the software be easily removed according to generally accepted methods.
User Network Campaigns. For all Users that maintain their own publisher networks, User agrees to place the Links in its publisher network (the “Network”) for access and use by those users in User’s Network (each a “Third Party Publisher”). User agrees that it will expressly forbid any Third Party Publisher to modify the Links in any way. User agrees to maintain its Network according to the highest industry standards. User shall not permit any party to be a Third Party Publisher whose web site or business model involves content containing Objectionable Content. All Third Party Publishers must be in good standing with User. User must require and confirm that all Third Party Publishers affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. User shall promptly terminate any Third Party Publisher who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Publisher with respect to the Links, User shall promptly disclose to Grandmobi the identity and contact information for such Third Party Publisher. User shall promptly remove any Third Party Publisher from the Affiliate Program and terminate their access to future Campaigns of Grandmobi in the Network upon written notice from Grandmobi. Unless Grandmobi has been provided with all truthful and complete contact information for a Third Party Publisher and such Third Party Publisher has affirmatively accepted this Agreement as recorded by Grandmobi, User shall remain liable for all acts or omissions of any Third Party Publisher.
3. CONFIDENTIALITY
Except as otherwise provided in this Agreement or with the consent of Grandmobi, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our Users provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. User shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
4. LIMITED LICENSE & INTELLECTUAL PROPERTY
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site. You may not alter, modify, manipulate or create derivative works of the Links or any Grandmobi graphics, creative, copy or other materials owned by, or licensed to, Grandmobi in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Grandmobi’s trademarks, service marks, copyrights, patents or trade secrets. You agree that Grandmobi may use any suggestion, comment or recommendation you choose to provide to Grandmobi without compensation. All rights not expressly granted in this Agreement are reserved by Grandmobi.
5. TERMINATION
This Agreement shall commence on the date of our approval of your Affiliate Program application or on the date of signature of a copy of this Agreement by both Grandmobi and you, whichever comes first, and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Campaigns or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Campaigns or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Grandmobi or Client intellectual property, and will cease representing yourself as a Grandmobi or Client publisher for such one or more Campaigns. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
6. REMEDIES
In addition to any other rights and remedies available to us under this Agreement Grandmobi reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or chargeback paid Commissions to your account if (i) Grandmobi determines that you have violated this Agreement, (ii) Grandmobi receives any complaints about your participation in the Affiliate Program which Grandmobi reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Grandmobi reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
7. ANTI-SPAM POLICY
You must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. From time to time, we may request – prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to Grandmobi for approval by sending it to your Grandmobi representative and upon receiving written approval from Grandmobi of your email the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon Grandmobi’s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon Grandmobi’s approval.
8. FRAUD
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Users or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. Grandmobi shall make all determinations about fraudulent activity in its sole discretion.
9. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Grandmobi represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Grandmobi’s own business operations or Grandmobi’s proprietary products or services.
10. MODIFICATIONS
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Grandmobi may change, suspend or discontinue any aspect of a Campaign or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. User agrees to promptly implement any request from Grandmobi to remove, alter or modify any Link, graphic or banner ad that is being used by User as part of the Affiliate Program.
11. INDEPENDENT INVESTIGATION
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Campaign and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
12. MUTUAL INDEMNIFICATION
User hereby agrees to indemnify, defend and hold harmless Grandmobi and Clients and their respective subsidiaries, publishers, Users, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by User herein, (ii) any misuse by User, or by a party under the reasonable control of User or obtaining access through Affiliate Program, of the Links, Campaigns or Grandmobi or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links). Grandmobi hereby agrees to indemnify, defend and hold harmless User and its subsidiaries, publishers, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on a claim that Grandmobi is not authorized to provide you with the Links.
13. DISCLAIMERS
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO USER “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, GRANDMOBI EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. GRANDMOBI DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET USER’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. GRANDMOBI EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. GRANDMOBI DOES NOT GUARANTEE THAT USER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
14. LIMITATION OF LIABILITY
IN NO EVENT SHALL GRANDMOBI BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF GRANDMOBI. IN NO EVENT WILL GRANDMOBI BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT GRANDMOBI HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. GRANDMOBI’S CUMULATIVE LIABILITY TO USER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE LESSER OF 1000 US DOLLARS (USD) OR THE AGGREGATE OF THE AMOUNTS PAID TO USER BY GRANDMOBI IN COMMISSIONS DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
15. GOVERNING LAW & MISCELLANEOUS
User shall be responsible for the payment of all attorney fees and expenses incurred by Grandmobi to enforce the terms of this Agreement. This Agreement contains the entire agreement between Grandmobi and User with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. User agrees that Grandmobi shall not be subject to or bound by any User insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Grandmobi “clicks through” or otherwise indicates its acceptance thereof. User may not assign all or any part of this Agreement without Grandmobi’s prior written consent. Grandmobi may assign this Agreement at any time with notice to User. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior written consent of Grandmobi. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
16. PRIVACY AND DATA PROCESSING
User represents and warrants that Publisher’s privacy policy permits the collection, use and transfer of data as contemplated hereby and the Program Terms. User will comply with all applicable laws and regulations, including data privacy and security laws and rules applicable to the personal information of the users that is being accessed, collected, used, or shared by User with Grandmobi. User shall post on any website involved in the Programs a privacy policy that abides by all applicable laws and regulations and that: (a) includes a link to Grandmobi’s Privacy Policy; and (b) provides legally adequate disclosure to User’s users about: (i) any information relating to users that will be provided or is otherwise accessible to us in connection with the services, as set forth in the Grandmobi’s Privacy Policy; and (ii) to the extent applicable, a conspicuous manner, in accordance with applicable laws and regulations and as instructed by Grandmobi, in which a user may opt-out of receiving targeted ads based on the user’s behavior and interests. User hereby confirm that it has read and understands Grandmobi’s Privacy Policy, and that nothing therein is contrary to User’s privacy policy. Grandmobi may use cookies and pixels as part of the services, inter alia, for the purpose of performing and improving the services, analyzing its performance, detecting and addressing technical issues. In no event will Grandmobi be liable for any placement of cookies by third parties. User hereby acknowledge and agree to the terms of the Data Processing Addendum attached hereto as Exhibit A.
By submitting an application to Affiliate Program, User affirms and acknowledges that User has read this Agreement in its entirety and agrees to be bound by all of its terms and conditions. If User does not wish to be bound by this Agreement, User should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
Exhibit A
Data Protection Addendum
This Data Protection Addendum (“Addendum”) forms part of the (“Agreement”) between Grandmobi acting on its own behalf and as agent for each Grandmobi Affiliate; and User on its own behalf and as agent for each User Affiliate.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized 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.
The parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.
1. Definitions.
1.1. “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either User or Grandmobi respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.2. “Controller,” “Processor,” “Data Subject,” “Personal Data,” “Processing,” “Supervisory Authority,” “Personal Data Breach,” and “Special Categories of Personal Data” shall have the same meaning as in the Data Protection Laws;
1.3. “Data Protection Laws” shall mean Directive 95/46/EC and Directive 2002/58 /EC, in each case as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time, including without limitation by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”) and any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, or, and to the extent applicable, the data protection or privacy laws of any other Member State of the EEA;
1.4. “EEA” means the European Economic Area as well as any country for which the European Commission has published an adequacy decision as published at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en
1.5. “Restricted Transfer” means the onward transfer of Personal Data that is located in the EEA to another party in a country that is not in the EEA, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or another adequate transfer mechanism as approved by the European Commission;
1.6. “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the contractual clauses.
1.7. “Subprocessor” means any Processor appointed by either party acting as a Processor to the other party acting as Controller to Process Personal Data on behalf of the other party acting as Controller or such party’s Affiliate.
2. Data Processing Terms. Grandmobi and User are parties to the Agreement by which Grandmobi provides Services to User and User Affiliates. In performing their respective obligations under the Agreement, each party may receive Personal Data which may be subject to the Data Protection Laws. The parties acknowledge that Grandmobi acts as a Controller with respect to the Processing specified in Grandmobi’s privacy policy, and User acts as a Controller with respect to Processing specified in the Agreement. Where the Processing specified in Grandmobi’s privacy policy overlap with the Processing specified in the Agreement, the parties acknowledge and agree that both Grandmobi and User will be considered Controllers of Personal Data with respect to the Processing. Each party shall only use or otherwise Process Personal Data in accordance with the permitted purposes set forth in this Addendum and in accordance with Data Protection Laws. Each party shall be individually and separately responsible for complying with the obligations under Data Protection Laws that apply to such party as a Controller or Processor, as applicable, in respect to certain types of Personal Data processed under the Agreement and this Addendum.
3. Processing of Personal Data as Processor. Except as provided in Section 2 and when acting as a Processor to User, Grandmobi shall not Process Personal Data other than on User’s documented instructions unless Processing is required by Data Protection Laws to which Grandmobi is subject, in which case Grandmobi shall to the extent permitted by Data Protection Laws inform User of that legal requirement before Processing Personal Data. For the avoidance of doubt, the Agreement and any related Order entered into by User shall constitute documented instructions for the purposes of this Addendum.
4. Consent for the Processing of Personal Data. As Grandmobi does not have a direct relationship with any Data Subject using or accessing User Program, User shall be responsible for: (1) giving adequate notice and making all appropriate disclosures to Data Subjects regarding User’s use and disclosure and Grandmobi’s Processing of Personal Data; and (2) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Personal Data to Grandmobi and to permit the processing of such Personal Data by Grandmobi for the purposes of performing Grandmobi’s obligations under the Agreement or as may be required by Data Protection Laws. User shall notify Grandmobi of any changes in, or revocation of, the permission to use, disclose, or otherwise process Personal Data that would impact Grandmobi’s ability to comply with the Agreement, or applicable Data Protection Laws.
5. Cookies and Notifications. As Grandmobi does not have a direct relationship with any Data Subject using or accessing User Application, and in each case where consent is necessary for the use of cookies, other local storage, or collection of information from Data Subjects’ devices, User shall obtain, and shall ensure that its Affiliates or Subcontractors enabled by User using the Services pursuant to the Agreement, obtain, the specific, informed, unambiguous, and freely given consent of each Data Subject for the use of cookies and the collection of information from Data Subjects’ devices in connection with the Services. User will have, and ensure that all of the User Application contain, and will require that its Affiliates and Subcontractors enabled by User using the Services pursuant to the Agreement, and their respective properties and platforms, contain appropriate, clear, concise, easily accessible notifications in accordance with Data Protection Laws that provide transparency to Data Subjects about what Personal Data is being processed by or on behalf of Grandmobi, the purpose of such Processing, and any other disclosures required by Data Protection Laws. In each case where User uses any Personal Data sources from a third party in connection with the Services provided pursuant to the Agreement, User shall ensure that such third party provide or obtain and shall ensure that such third party’s own sources of Personal Data provide or obtain, the notification or consent in accordance with the requirements of this Section 5.
6. Confidentiality. Each party shall take reasonable steps to ensure that individuals that process Personal Data are subject to obligations of confidentiality or are under an appropriate obligation of confidentiality.
7. Security. Each party shall implement and maintain all appropriate technical and organizational measures required to ensure a level of confidentiality and security appropriate to the risks represented by the Processing and the nature of the Personal Data, and to prevent unauthorized or unlawful Processing of Personal Data, including but not limited to measures against accidental loss, disclosure or destruction of, or damage to, Personal Data.
8. Subprocessing. Each party hereby grants the other party general authorization to engage Subprocessors in connection with performing its obligations under the Agreement (including website hosting providers, credit card processors, marketing professionals, network infrastructure operators, providers of anti-fraud reporting services, analytics service providers, and other outsourced providers), provided that such party shall in each case ensure that: (1) such party enters into a written agreement with such Subprocessors that includes materially the same obligations as those in this Addendum; (2) such party remains fully responsible for such Subprocessors Processing activities under the Agreement; (3) such Subprocessors implement appropriate technical and organization security measures to protect Personal Data; and (4) such Subprocessors provide sufficient guarantees that such Subprocessors will Process Personal Data in a manner that will meet the requirements of applicable Data Protection Laws.
9. Data Subject Rights. In the event a party receives a request from a Data Subject for Personal Data related to such Data Subject as permitted by any Data Protection Laws (a “Data Subject Request”), such party shall not share, transfer, disclose, or otherwise provide or permit access to Personal Data without the other party’s prior written consent. If either party receives a Data Subject Request relating to Personal Data in its control or possession, it shall promptly (and in any event within 5 days): (1) provide the other party with all information relating to the Data Subject Request; (2) give the other party a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of Personal Data and the rights of the relevant Data Subject; and (3) provide any assistance reasonable requested by such party to take such steps.
10. Personal Data Breach. Each party agrees to notify the other party without undue delay after becoming aware of the Personal Data Breach and to take reasonable steps to mitigate the impact of any Personal Data Breach that may impact the other party. To the extent a party seeks the assistance of the other party related to the investigation of a Personal Data Breach, the other party shall reasonably cooperate with such requesting party to: (1) determine the scope and severity of the Personal Data Breach; and (2) provide timely information and cooperation as the requesting party may require to fulfill the requesting party’s reporting and notification obligations under Data Protection Laws. Unless such party is required to give notice to individuals under Data Protection Laws, such party shall not give notice to individuals in respect to a Personal Data Breach, except with the prior written approval of the other party.
11. Data Protection Impact Assessment and Prior Consultation. To the extent that a party considers that the Processing of Personal Data requires a data protection impact assessment to be undertaken or requires assistance with any prior consultations to any applicable Supervisory Authority, following written request from such party, the other party shall use reasonable commercial efforts to provide relevant information and assistance to the requesting party to fulfill such request.
12. Deletion or Return of Personal Data. Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement, or at any time following the other party’s request, each party shall, at the other party’s option, delete or return all Personal Data and all copies to the other party.
13. Relevant Records and Audit Rights. Each party shall make available to the other party on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by the requesting party of any premises where the Processing of Personal Data takes place in order to assess compliance with this Addendum. The parties shall reasonably cooperate in respect of any such audit in compliance with the obligations under this Addendum. The party that receives such request shall promptly inform the requesting party if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations. The requesting party agrees that: (1) audits may only occur during normal business hours, and where possible only after reasonable notice (not less than 20 days’ advance written notice); (2) audits will be conducted in a manner that does not have any adverse impact on normal business operations; and (3) the audit will comply with standard safety, confidentiality, and security procedures in conducting any such audits.
14. International Data Transfer. In the event that either party initiates a Restricted Transfer of Personal Data, the parties shall enter into the Standard Contractual Clauses which terms shall take precedence over those in Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer or Personal Data to an entity located outside the EEA, the parties shall cooperate to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (1) the data exporter becoming a party to them; (2) the data importer becoming a party to them; and (3) commencement of the relevant Restricted Transfer of Personal Data.
15. Warranties and Indemnity. Each party represents and warrants that it will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data. Each party (an “Indemnifying Party”) shall defend (through its own counsel), indemnify and hold harmless the other and the other’s officers, directors, employees, agents, representatives, service providers and affiliates (an “Indemnified Party”) from and against all liabilities, damages, losses, costs and expenses, including attorneys’ fees and other legal expenses (“Losses”), arising directly or indirectly from or in connection with any claims, actions or proceedings involving any alleged breach by the Indemnifying Party of its representations and warranties contained herein. In any defense with respect to any matter covered by this paragraph, the Indemnified Party may participate with counsel of its own choosing at its expense and the Indemnifying Party will not agree to any settlement which imposes any obligation or liability on the Indemnified Party without such Indemnified Party’s prior written consent, (such consent not to be unreasonably withheld or delayed). Each party shall promptly inform the other of any third party claims, actions, or proceedings to which it becomes aware that involves the other party as a result of this Addendum.
16. Liability. The liability of the parties under or in connection with these Controller Terms will be subject to the exclusions and limitations of liability in the Agreement.
17. General Terms. Any obligation imposed under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum. To the extent that Data Protection Laws do not apply to the Processing of Personal Data, this Addendum shall be governed by the governing law of the Agreement. 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: (1) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (2) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.