Data Processing Agreement

This Data Processing Addendum (“DPA”) is incorporated by reference into Common Ninja’s Terms and Conditions available at https://www.commoninja.com/terms or other agreement governing the use of Common Ninja’s services (“Agreement”) entered by and between you, the user/developer/customer/partner using the Common Ninja services and platform (collectively, “you”, "your”, “Customer”), and Common Ninja Ltd. (“Common Ninja”, “us”, “we”, “our”) to reflect the parties’ agreement with regard to the Processing of Personal Data by Common Ninja solely on behalf of the Customer. Both parties shall be referred to as the “Parties” and each, a “Party”. 

Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement. By using the Services, Customer accepts this DPA and you represent and warrant that you have full authority to bind the Customer to this DPA. If you cannot, or do not agree to, comply with and be bound by this DPA, or do not have authority to bind the Customer or any other entity, please do not provide Personal Data to us. In the event of any conflict between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Data. 

1. DEFINITIONS

  1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  2. “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq., and its implementing regulations, as may be amended from time to time;
  3. The terms, "Controller", "Member State", "Processor", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR. The terms “Business”, “Business Purpose”, “Consumer” and “Service Provider” shall have the same meaning as in the CCPA. 
  4. For the purpose of clarity, within this DPA “Controller” shall also mean “Business”, and “Processor” shall also mean “Service Provider”, to the extent that the CCPA applies. In the same manner, Processor’s Sub-processor shall also refer to the concept of Service Provider. 
  5. “Data Protection Laws” means all applicable and binding privacy and data protection laws and regulations, including such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Israel and the United States of America, as applicable to the Processing of Personal Data under the Agreement including (without limitation) the GDPR, the UK GDPR, the FADP and the CCPA, as applicable to the Processing of Personal Data hereunder and in effect at the time of Common Ninja’s performance hereunder.
  6. “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
  7. “FADP” means the Swiss Federal Act on Data Protection of 19 June 1992, and as revised as of 25 September 2020, the “Revised FADP”.
  8. “GDPR” means the Regulation (EU) 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).
  9. “Personal Data” or “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable natural person or Consumer, to the extent such information is processed by Common Ninja solely on behalf of Customer, under this DPA and the Agreement between Customer and Common Ninja.
  10. “Services” means the services provided to Customer by Common Ninja (including, without limitation) the Common Ninja API(s) and the Common Ninja Plugins) in accordance with the Agreement (including, without limitation).
  11. “Security Documentation” means the documentation describing the technical and organization measures Customer has in place to protect Personal Data which are applicable to the Services used by Customer, as updated from time to time and as made available to Customer by Common Ninja upon request.
  12. “Sensitive Data” means Personal Data that is protected under a special legislation and requires unique treatment, such as “special categories of data”, “sensitive data” or other materially similar terms under applicable Data Protection Laws, which may include any of the following: (a) social security number, tax file number, passport number, driver's license number, or similar identifier (or any portion thereof); (b) credit or debit card number; (c) financial, credit, genetic, biometric or health information; (d) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences; and/or (e) account passwords in unhashed form.
  13. “Standard Contractual Clauses” means the Standard Contractual Clauses between controllers and processors, and between processors and processors, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, including all Annexes thereto, that are currently located at https://www.commoninja.com/privacy/scc-c2p and https://www.commoninja.com/privacy/scc-p2p, respectively.
  14. “Sub-processor” means any third party that Processes Personal Data under the instruction or supervision of Common Ninja.
  15. "UK GDPR" means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).

2. PROCESSING OF PERSONAL DATA

    1. Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data solely on behalf of Customer, (i) Customer is the Controller of Personal Data, (ii) Common Ninja is the Processor of such Personal Data. Consequently, in the event Customer Processes the Personal Data as a Processor of another Controller, then Common Ninja shall be deemed as the Customer’s Sub-processor in relation to the Personal Data Processed by Customer via the Services.
    2. Customer’s Processing of Personal Data. Customer, in its use of the Services, and Customer’s instructions to the Common Ninja, shall comply with Data Protection Laws. Customer shall establish and have any and all required legal bases in order to collect, Process and transfer to Common Ninja the Personal Data, and to authorize the Processing by Common Ninja, and for Common Ninja’s Processing activities on Customer’s behalf, including the pursuit of ‘business purposes’ as defined under the CCPA. 
    3. Common Ninja’s Processing of Personal Data. When Processing on Customer’s behalf under the Agreement, Common Ninja shall Process Personal Data for the following purposes: (i) Processing in accordance with the Agreement and this DPA; (ii) Processing for Customer as part of its provision of the Services; (iii) Processing to comply with Customer’s reasonable and documented instructions; (iv) rendering Personal Data fully anonymous, non-identifiable and non-personal in accordance with applicable standards recognized by Data Protection Laws and guidance issued thereunder; (v) Processing as required under the applicable laws, and/or as required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, provided that Common Ninja shall inform Customer of the legal requirement before Processing, unless such law or order prohibit such information on important grounds of public interest. 

Common Ninja shall inform Customer without undue delay if, in Common Ninja’s opinion, an instruction for the Processing of Personal Data given by Customer infringes applicable Data Protection Laws. To the extent that Common Ninja cannot comply with an instruction from Customer, Common Ninja shall inform Customer, providing relevant details of the issue, and, without liability to Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing such data) and/or suspend Customer’s access to the Services.

  1. Details of the Processing. The subject-matter of Processing of Personal Data by Common Ninja is the performance of the Services pursuant to the Agreement. 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 (Details of Processing) to this DPA.
  2. Sensitive Data. The Parties agree that the Services are not intended for the processing of Sensitive Data, and that if Customer wishes to use the Services to process Sensitive Data, it must first obtain the Common Ninja’s explicit prior written consent and enter into any additional agreements as required by Common Ninja.
  3. CCPA Standard of Care; No Sale of Personal Information. Common Ninja acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that Common Ninja provides to Customer under the Agreement. Common Ninja shall not have, derive, or exercise any rights or benefits regarding Personal Information Processed on Customer’s behalf, nor shall it combine the Personal Information Processed on Customer’s behalf with any information it Processes on behalf of any other parties, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA. Common Ninja certifies that it understands the rules, requirements and definitions of the CCPA and agrees to refrain from selling or sharing (as such terms is defined in the CCPA) any Personal Information Processed hereunder without Customer’s prior written consent, nor taking any action that would cause any transfer of Personal Information to or from Common Ninja under the Agreement or this DPA to qualify as “selling” or “sharing” such Personal Information under the CCPA.

3. DATA SUBJECT REQUESTS

Common Ninja shall, to the extent legally permitted, notify Customer or refer Data Subject or Consumer to Customer, if Common Ninja receives a request from a Data Subject or Consumer to exercise their rights (to the extent available to them under applicable Data Protection Laws) of access, right to rectification, restriction of Processing, erasure, data portability, objection to the Processing, their right not to be subject to automated individual decision making, to opt-out of the sale or share of Personal Information, or the right not to be discriminated against (“Data Subject Request”). Taking into account the nature of the Processing, Common Ninja shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible and reasonable, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws. Common Ninja may advise Data Subjects on available features for self-exercising their Data Subject Requests through the Services (where appropriate), and/or refer Data Subject Requests received, and the Data Subjects making them, directly to the Customer for its treatment of such requests.

4. CONFIDENTIALITY

Common Ninja shall ensure that its personnel and advisors engaged in the Processing of Personal Data have committed themselves to confidentiality.

5. SUB-PROCESSORS 

  1. Customer acknowledges and agrees that (a) Common Ninja’s Affiliates may be engaged as Sub-processors; and (b) Common Ninja and Common Ninja’s Affiliates on behalf of Common Ninja may each engage third-party Sub-processors in connection with the provision of the Services.
  2. Common Ninja makes available to Customer the current list of Sub-processors used by Common Ninja to process Personal Data viahttps://www.commoninja.com/privacy/sub-processors. Such Sub-processor list includes the identities of those Sub-processors and the entity’s country (“Sub-Processor List”). This Sub-Processor List is hereby deemed authorized upon Customer’s first use of the Services.
  3. Common Ninja’s webpage accessible via https://www.commoninja.com/privacy/sub-processors offers a mechanism to subscribe to notifications of new Sub-processors used to Process Personal Data, to which Customer shall subscribe, and when Customer subscribes, Common Ninja shall provide notification of any new Sub-processor(s) before authorizing such new Sub-processor(s) to Process Personal Data in connection with the provision of the Services. If Customer wishes to object to Common Ninja’s use of a new Sub-processor, for reasons relating to the protection of Personal Data intended to be Processed by such Sub-processor, it may do so by notifying Common Ninja promptly in writing within ten (10) days after receipt of a Common Ninja notification in accordance with the mechanism set out in this Section 5.3.
  4. Common Ninja or its Affiliates on behalf of Common Ninja has entered into a written agreement with each Sub-processor containing appropriate safeguards to the protection of Personal Data. Where Common Ninja engages a Sub-processor, the same or materially similar data protection obligations as set out in this DPA shall be imposed on such new Sub-processor by way of contract. Where a Sub-processor fails to fulfil its data protection obligations concerning its Processing of Personal Data, Common Ninja shall remain responsible for the performance of the Sub-processor’s obligations. 

6. SECURITY & AUDITS

  1. Controls for the Protection of Personal Data. Common Ninja shall maintain industry-standard technical and organizational measures for protection of Personal Data Processed hereunder. (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data, confidentiality and integrity of Personal Data, including those measures set forth in the Security Documentation), as may be amended from time to time. Upon the 5 Customer’s reasonable request, Common Ninja will reasonably assist Customer, at Customer’s cost and subject to the provisions of Section 11.1 below, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the Processing and the information available to Common Ninja.
  2. Audits and Inspections. Upon Customer’s 14 days prior written request at reasonable intervals (no more than once every 12 months), an subject to strict confidentiality undertakings by Customer, Common Ninja shall make available to Customer (or Customer’s independent, reputable, third-party auditor, subject to their confidentiality undertakings) information necessary to demonstrate compliance with this DPA, and allow for and contribute to audits, including inspections, conducted by them (provided, however, that such information, audits, inspections and the results therefrom, including the documents reflecting the outcome of the audit and/or the inspections, shall only be used by Customer to assess compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without Common Ninja’s prior written approval. Upon Common Ninja’s first request, Customer shall return all records or documentation in Customer's possession or control provided by Common Ninja in the context of the audit and/or the inspection).
  3. In the event of an audit or inspections as set forth above, Customer shall ensure that it (and each of its mandated auditors) will not cause (or, if it cannot avoid, minimize) any damage, injury or disruption to Common Ninja’s premises, equipment, personnel and business while conducting such audit or inspection. 
  4. The audit rights set forth in ‎6.2 above, shall only apply to the extent that the Agreement does not otherwise provide Customer with audit rights that meet the relevant requirements of Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR or the UK GDPR).

7. DATA INCIDENT MANAGEMENT AND NOTIFICATION

Common Ninja maintains security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data Processed by Common Ninja on behalf of the Customer (a “Data Incident”). Common Ninja shall make reasonable efforts to identify and take those steps as Common Ninja deems necessary and reasonable in order to remediate and/or mitigate the cause of such Data Incident to the extent the remediation and/or mitigation is within Common Ninja’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or anyone who uses the Services on Customer’s behalf. Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Data Incident which directly or indirectly identifies Common Ninja (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without Common Ninja’s prior written approval, unless, and solely to the extent that, Customer is compelled to do so pursuant to applicable Data Protection Laws. In the latter case, unless prohibited by such laws, Customer shall provide Common Ninja with reasonable prior written notice to provide Common Ninja with the opportunity to object to such disclosure and in any case Customer will limit the disclosure to the minimum scope required.

8. RETURN AND DELETION OF PERSONAL DATA

Following termination of the Agreement and subject thereto, Common Ninja shall, at the choice of Customer (indicated through the Services or in written notification to Common Ninja by email to [email protected]), delete or return to Customer all the Personal Data it Processes solely on behalf of the Customer, and shall delete existing copies of such Personal Data unless Data Protection Laws require otherwise. To the extent authorized or required by applicable law, Common Ninja may also retain one copy of the Personal Data solely for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or for compliance with legal obligations. 

9. CROSS-BORDER DATA TRANSFERS

  1. Transfers from the EEA, the United Kingdom and Switzerland to countries that offer adequate level of data protection. Personal Data may be transferred from EU Member States, the three other EEA member countries (Norway, Liechtenstein and Iceland) (collectively, “EEA”), the United Kingdom (“UK”) and Switzerland to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the European Union, the Member States or the European Commission, the UK, and/or Switzerland (“Adequacy Decisions”), as applicable, without any further safeguard being necessary.
  2. Transfers from the EEA, the United Kingdom and Switzerland to other countries. If the Processing of Personal Data by Common Ninja includes a transfer (either directly or via onward transfer) from the EEA (“EEA Transfer”), the UK (“UK Transfer”), and/or Switzerland (“Swiss Transfer”) to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Common Ninja for the lawful transfer of personal data (as defined in the GDPR, the UK GDPR, the FADP, as relevant) outside the EEA, the UK or Switzerland, as applicable, then (i) the terms set forth in the Standard Contractual Clauses shall apply to any such EEA Transfer; (ii) the terms set forth in Standard Contractual Clauses, in accordance with Annex III thereto (UK Cross Border Transfers) shall apply to any such UK Transfer; (iii) the terms set forth in Standard Contractual Clauses, in accordance with Annex IV thereto (Swiss Cross Border Transfers) shall apply to any such Swiss Transfer; and (iv) the terms set forth in Standard Contractual Clauses, in accordance with Annex V thereto (Additional Safeguards) shall apply to any such transfers.

10. AUTHORIZED AFFILIATES

  1. Contractual Relationship. The Parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, in which case each Authorized Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Common Ninja Processes Personal Data on the behalf of such Authorized Affiliates, thus qualifying them as the “Controller”. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.
  2. Communication. Customer shall remain responsible for coordinating all communication with Common Ninja under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

11. OTHER PROVISIONS

  1. Data Protection Impact Assessment and Prior Consultation. Upon reasonable request from Customer, Common Ninja shall provide with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR or the UK GDPR (as applicable) to carry out a data protection impact assessment and shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority.
  2. Modifications. Each Party may by at least forty-five (45) calendar days' prior written notice to the other Party, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws, to allow Processing of Customer Personal Data to be made (or continue to be made) without breach of those Data Protection Laws.

Schedule 1 - Details of the Processing

Nature and Purpose of Processing

  1. Providing the Services to Customer;
  2. Performing the Agreement, this DPA and/or other contracts executed by the Parties; 
  3. Acting upon Customer’s instructions, where such instructions are consistent with the terms of the Agreement;
  4. Sharing Personal Data with third parties in accordance with Customer’s instructions and/or pursuant to Customer’s use of the Services (e.g., integrations between the Services and any services provided by third parties, as configured by or on behalf of Customer to facilitate the sharing of Personal Data between the Services and such third party services); 
  5. Complying with applicable laws and regulations;
  6. All tasks related with any of the above.

Duration of Processing

Common Ninja will Process Personal Data pursuant to the DPA and Agreement for the duration of the Agreement, unless otherwise agreed upon in writing. 

Type of Personal Data

Personal Data contained in information received through the Common Ninja API(s), which may include (without limitation) the following: name, phone number, e-mail address, purchases, media files, images and videos, and mailing address 

OR (depending on the Customer’s use of the Services)

Personal Data contained in information received through the Common Ninja Plugins used by the Customer.

Categories of Data Subjects

Customer’s shoppers / end-users / website’s visitors / consumers (as appropriate).

Last Updated: November 2023