Data Processing Addendum
17 November 2022
Last updated: 23 November 2021
Using Harvest Media to manage your customers means that you have engaged Harvest Media as a data processor to carry out certain processing activities on your behalf.
This Data Processing Addendum (“Addendum”) amends the Harvest Media Terms of Service (the “Agreement”) by and between you and Harvest Media Services Pty Ltd, an Australian company with offices at Suite 203, 8 Hill St Surry Hills, on behalf of itself (“Harvest”).
(a) “Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC, and any legislation and/or regulation implementing or made pursuant to them, or which amends or replaces any of them (including the General Data Protection Regulation, Regulation (EU) 2016/679);
(b) “Data Processor”, “Data Subject”, “Processor”, “Processing”, “Sub-processor”, and “Supervisory Authority” shall be interpreted in accordance with applicable Data Protection Legislation;
(c) “Personal Data” as used in this Addendum means information relating to an identifiable or identified Data Subject who visits or engages via your account (a “Customer”), which Harvest Media Processes as a Data Processor in the course of providing you with the Services. Notwithstanding the foregoing sentence, Personal Data does not include information that Harvest Media processes in the context of services that it provides directly to a consumer.
- Data Protection
2.1. Where a Data Subject is located in the European Economic Area, that Data Subject’s Personal Data will be processed by Harvest. As part of providing the Services, this Personal Data may be transferred to other regions, including to Australia and the United States. Such transfers will be completed in compliance with relevant Data Protection Legislation.
2.2. When Harvest Processes Personal Data in the course of providing the Services, Harvest will:
2.2.1. Process the Personal Data as a Data Processor, only for the purpose of providing the Services in accordance with documented instructions from you (provided that such instructions are commensurate with the functionalities of the Services), and as may subsequently be agreed to by you. If Harvest is required by law to Process the Personal Data for any other purpose, Harvest will provide you with prior notice of this requirement, unless Harvest is prohibited by law from providing such notice;
2.2.2. notify you if, in Harvest’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 Data Subject or Supervisory Authority relating to Harvest’s Processing of the Personal Data;
2.2.4. implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These 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;
2.2.5. provide you, upon request, with up-to-date attestations, reports or extracts thereof where available from a source charged with auditing Harvest’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;
2.2.6. notify you promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data;
2.2.7. ensure that its personnel who access the Personal Data are subject to confidentiality obligations that restrict their ability to disclose the Customer Personal Data; and
2.2.8. upon termination of the Agreement, Harvest will promptly initiate its purge process to delete or anonymize the Personal Data. If you request a copy of such Personal Data within 60 days of termination, Harvest will provide you with a copy of such Personal Data.
2.3 In the course of providing the Services, you acknowledge and agree that Harvest may use Sub-processors to Process the Personal Data. Harvest’s use of any specific Sub-processor to process the Personal Data must be in compliance with Data Protection Legislation and must be governed by a contract between Harvest and the Sub-processor.
3.2 Harvest may continue to use those Sub-processors already engaged by Harvest as of the date of this Addendum, subject to Harvest meeting the obligations set out in Section 6.4. The list of current Harvest Sub-processors is set out below.
3.3 Harvest shall give the Client prior written notice of the appointment of any new Sub-processor, by way of sending notice e-mails or updates to its Terms of Service online, including full details of the Processing to be undertaken by that respective Sub-processor. If within 10 days of receipt of each such notice e-mail, the Client does not explicitly notify Harvest in writing of any objections (on reasonable grounds) to the proposed appointment, it shall be deemed that the Client has consented to the proposed appointment.
- With respect to each Sub-processor, Harvest shall:
- before the Sub-processor first Processes Client Personal Data (or, where relevant, in accordance with Section 6.2), carry out adequate due diligence to ensure that the Sub-processor is capable of providing the level of protection for Client Personal Data required by the present Addendum, the Service Agreement, and EU Data Protection Laws; and
- ensure that the arrangement between: on the one hand, (i) Harvest, or (ii) the relevant intermediate Sub-processor; and on the other hand, the respective envisaged Sub-processor, is governed by a written contract including terms which offer at least the same level of protection for Client Personal Data as those set out in this Addendum, and that such terms meet the requirements of Article 28(3) of the GDPR.
4.1 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 Harvest may amend this Addendum from time to time by posting the relevant amended and restated Addendum on Harvest’s website, available at www.harvestmedia.net/privacy/ and such amendments to the Addendum are effective as of the date of posting. Your continued use of the Services after the amended Addendum is posted to Harvest’s website constitutes your agreement to, and acceptance of, the amended Addendum. If you do not agree to any changes to the Addendum, do not continue to use the Service.
4.2 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.
4.3 The terms of this Addendum shall be governed by and interpreted in accordance with the laws of the state of New South Wales and the laws of Australia 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 New South Wales with respect to any dispute or claim arising out of or in connection with this Addendum.