Agreement pursuant to Article 26 (1) the General Data Protection Regulation (GDPR)
Trusted Shops GmbH, Subbelrather Str. 15c, 50823 Köln (Cologne), Germany -hereinafter referred to as "Trusted Shops"-
the Member or User according to the Membership contract or contract of use for the Experience Feedback platform (hereinafter uniformly referred to as "Main Contract")
- hereinafter also referred to individually as the "Party" and collectively as the "Parties". The term Member shall hereinafter also mean any user of the Experience Feedback Platform -
1 Subject matter of the agreement
Trusted Shops offers various trust services for companies. In this context, personal data is processed under the joint controllership of the Parties. If Member does not act as a single controller but involves other controllers in the processing activities covered by this agreement, Member shall inform Trusted Shops of these other controllers so that they can join this agreement.
The respective rights and obligations of the Parties under the GDPR, as well as the specified purposes and means of processing, are governed by this Agreement on the Joint Controllership pursuant to Article 26 GDPR (hereinafter referred to as “the Agreement”). The Agreement applies to all activities in which the Parties’ employees, or processors commissioned by them process personal data on behalf of the data controllers.
2 - Description of data processing and responsibility
The details of the purpose, nature and scope of the data processing are set out in the agreement in Appendix I and in specific provisions in this Agreement.
The individual processing activities over which there is joint controllership of the Parties are precisely identified and allocated to the respective area of responsibility in Appendix I to this Agreement. Wherever the individual responsibilities are not specifically regulated, for the avoidance of doubt, both Parties will be equally responsible for the respective data processing.
3 - Implementation of data subject rights and information obligations
The Parties have also regulated in Appendix I to this Agreement their individual responsibilities for the compliance with the data subject rights laid down in Article 15 - 22 GDPR. Wherever the individual responsibilities are not specifically regulated, for the avoidance of doubt, both Parties will be equally responsible for safeguarding the rights of the data subjects.
Data subjects may address their requests for the exercise of their data protection rights to either Party, without prejudice to the responsibilities set out in Appendix I. The Parties are obliged to forward the requests to the respective responsible Party. To this end, the Parties shall provide each other with contact addresses and notify each other of any changes in text form. Both Parties undertake to provide the information to the data subject. In the event of a data subject request addressed to them pursuant to Article 15 - 22 GDPR, the Parties are also obliged to inform the respectively other Party of the request and its essential content. This does not apply if the disclosure of this information is not permitted under data protection law or professional law, in particular in case the person concerned explicitly does not wish it to be disclosed.
The Parties may specify in Appendix I to this Agreement the primary responsibilities for fulfilling the information obligations under Articles 13 and 14 GDPR. Each Party is obliged to implement the information obligations arising from Articles 13 and 14 GDPR and Article 26 (2) GDPR vis-à-vis the data subjects. The Parties shall ensure that this information is accessible via the Internet and provide each other with the Internet addresses at which the respective information can be accessed.
The Parties shall provide, free of charge, the data subject with the necessary data and information in a concise, transparent, intelligible and easily accessible form, using clear and plain language.
4 - Erasure requests by data subjects
In the event of erasure requests by data subjects, the Parties shall inform each other thereof. The erasure request has to be complied with in accordance with the requirements of Section 3 of this Agreement, provided that there are no legitimate reasons to oppose the erasure process. Legitimate reasons may, for example, lie in statutory data retention obligations of the respective Party.
The erasure of personal data must be documented by the Parties.
Obligations arising from Article 17 (2) GDPR must be fulfilled independently by the respective Party that has made personal data public. If the Parties have jointly made personal data public, Trusted Shops is responsible for fulfilling the obligations arising from Article 17(2) GDPR.
5 - Data security and data protection principles
The Parties mutually undertake to comply with the technical and organisational measures required in each case in accordance with Article 32 GDPR, insofar as this relates to the processing of personal data for which there is joint controllership within the meaning of Article 26 GDPR.
The data protection principles laid down in Article 5 GDPR must be complied with by the Parties; in particular, the Parties undertake to process data lawfully within this Agreement.
The Parties agree that both Parties shall take the necessary technical and organisational measures for their respective areas. Trusted Shops’ technical and organisational measures can be accessed at any time via the following link: https://help.etrusted.com/hc/en-gb/articles/360021040178.The Member is required to adopt technical and organisational measures within its own area of responsibility, and to disclose these to Trusted Shops on request.
In the event of irregularities and errors in the data processing under this Agreement, the Parties shall inform each other and assist each other in rectifying them. This also applies to violations of provisions of this Agreement.
6 - Data protection breaches
In the event of a personal data breach within the meaning of Article 4 No. 12 GDPR (hereinafter referred to as “Data Protection Breaches”) under this Agreement, the Parties shall notify each other without undue delay after becoming aware of the Data Protection Breach. The notification has to be made in text form. They shall provide each other with all the information necessary to investigate, remedy and assess the risk of the Data Protection Breach.
Both Parties are responsible for processing and reviewing a Data Protection Breach. They undertake to provide mutual support and to comply with any notification obligations in accordance with Articles 33 and 34 GDPR immediately. The Parties' obligations to cooperate under Paragraph 1 must be within the bounds of what is reasonable and necessary.
Data Protection Breaches and their processing must be documented by the Parties.
7 - Documentation Duties
The Parties undertake to independently comply with the documentation obligations contained in the GDPR. This applies, in particular, to the keeping of the register of processing activities in accordance with Article 30 GDPR. The Parties shall provide each other with the information necessary for the maintenance of the register in an appropriate form.
The Parties shall support each other with regard to all other documentation obligations, in particular, those arising from Articles 32 to 36 GDPR.
8 - Cooperation with data protection supervisory authorities
The Parties undertake to inform each other without undue delay in the event of enquiries from a data protection supervisory authority concerning processing activities covered by this Agreement.
Enquiries from the data protection supervisory authority will be processed jointly by the Parties unless otherwise agreed in individual cases.
Formal enquiries about this Agreement shall – as far as possible – be handled by Trusted Shops. Member forwards enquiries to Trusted Shops without being requested to do so, provided that the enquiry is directed to the Member.
Necessary information, access and inspection rights shall - within the framework of their statutory powers - be granted to data protection supervisory authorities by the Parties.
This is without prejudice to the Parties' right to seek legal remedy.
9 - Processor
Processors in the sense of Article 4 No. 8 GDPR may be commissioned under this Agreement by each Party without the prior consent of the other Party.
In the event of a commission such as described in Section 9 (1), the commissioning Party shall provide the other Party with all necessary information. The data processing agreement (DPA) must comply with the requirements of Articles 28 and 29 GDPR.
Should a processor be commissioned outside the EU/EEA, the commissioning party shall implement appropriate technical, organisational and contractual measures to ensure that the personal data is processed exclusively within the EU/EEA and, prior to the transfer of personal data to the third country, provide guarantees in accordance with Art. 44 et seq. of the GDPR for an adequate level of data protection to the other party and document this in writing in the contract for the commissioned processing. The other party has the right to object after reviewing the guarantees.
Upon conclusion of a DPA, the concluding Party shall, upon request, provide the respectively other Party with a copy of the DPA.
10 - Liability
The Parties are liable for their respective obligations towards the data subject in accordance with the statutory provisions.
With regard to their internal relationship, the liability of the Parties is determined by their respective area of responsibility, without prejudice to the provisions of this Agreement and any other liability distribution agreements of the Parties. Where both Parties are responsible for an area of data processing, liability for damages is determined in accordance with Section 426 of the German Civil Code (BGB) Article 82 (4) and (5) GDPR.
11 - Final Provisions
This Agreement is an integral part of the Main Contract and is effectively concluded upon the conclusion of the Main Contract. Regarding the term and termination of this Agreement, the provisions of the Main Contract apply. Should there be any inconsistencies with regard to data protection provisions between this Agreement and other agreements between the Parties, in particular the Main Contract, the provisions of this Agreement will prevail.
Should any provision of this Agreement be or become invalid or contain loopholes, this will not affect the validity of the remaining provisions. The Parties shall undertake to replace the invalid provision with another, valid provision that comes as close as possible to the purpose of the invalid provision and meets the economic requirements as well as the requirements of data protection law.
German law applies.
Appendix I - Description of the cooperation
Both Parties jointly determine the purposes and means for certain data processing within the context of the Trusted Shops services which constitutes their joint controllership under data protection law in the sense of Article 26 GDPR, at least for certain data processing operations or parts thereof. The following appendix describes the cooperation between the Parties and the distribution of responsibilities between them. Joint controllership is only in place if and to the extent that the Parties have entered into the respective agreements of the main contract required for the described data processing activities, or the described product is used by the Member. The Parties are free to process personal data obtained in the context of joint controllership for further purposes of their own, provided that this is permissible under the applicable data protection regulations and the data subjects are informed of this by the respective Party.
Trusted Shops also provides additional information in its Help Centre. Among others, it contains a table of responsibilities and competences with the help of which the Member can inform the data subjects about the essential contents of this Agreement pursuant to Article 26 (2) GDPR. Furthermore, there are non-binding working aids for the documentation of the balancing of interests mentioned in this Agreement.
The following processing activities are carried out by service providers with whom Trusted Shops has concluded a DPA. Where a third country transfer takes place, Trusted Shops is responsible for providing the appropriate legal framework, i.e. in particular, ensuring the existence of appropriate safeguards in the absence of an adequacy decision or an exemption pursuant to Article 49 GDPR. Trusted Shops will inform the Member of any third country transfer that takes place within the scope of the joint controllership, so that the Member can comply with information obligations it has towards data subjects.
Trustbadge and Widgets
Display of the widget
Trusted Shops provides various widgets (e.g., the Trustbadge) for the respective online presence of the Member, and is solely responsible for their content and the data processing associated with them. The Member's information obligations depend on the purpose for which the respective widget is integrated into the Member's online presence.
The integration of the widget into the online presence enables the display of authentic customer reviews and, in the case of the Trustbadge, also the collection of customer reviews. The Member is responsible for the display of the widget in the online presence. Its integration enables the display of the Trusted Shops Trustmark, the collection of reviews and the display of Trusted Shops services for buyers. The Member must provide information on the integration of the Trustbadge in its privacy notices. The responsibility for securing the legal basis for this as well as for all associated information obligations rests with the Member. Insofar as Member invokes Article 6 (1) (f) GDPR as the legal basis for the data processing, it is responsible for documenting the legal basis and for carrying out the weighing of interests. Insofar as the Member invokes Article 6 (1) (a) GDPR as the legal basis, it is responsible for documenting the legal basis and ensuring that it collects users’ consent and can prove such consent. Trusted Shops will inform the Member in case integrating the Trustbadge entails processing activities for which the data subjects’ consent must be obtained, e.g. setting cookies.
When retrieving the Trustbadge, anonymous visitor server log files are stored. The data stored in particular includes the anonymised IP address, date and time of the visit, and the referrer. This serves the purpose of ensuring the proper functioning of the website and recording any unusual occurrences. The legal basis for creating and storing the log files is Article 6 (1) (f) GDPR. The Member must provide information about the legal basis; Trusted Shops is responsible for documenting the weighing of interests.
Trusted Shops occasionally conducts A/B tests to analyse user behaviour in the Member's online presence based on different variants of the widgets. For this purpose, it is necessary to set a cookie or store information in the user's local storage. Trusted Shops will inform the Member in good time before the A/B test is carried out. The Member has the option to object to the A/B test for its online presence. The parties shall agree on an appropriate legal basis before conducting the A/B test. The Member is responsible for informing the user of the legal basis and, if necessary, for obtaining and documenting their consent.
Offering the Trusted Shops Buyer Protection services
The processing activities required for offering the Trusted Shops Buyer Protection services partly fall under the joint controllership of Trusted Shops and the Member. These processing activities are described in the Agreement. Trusted Shops and the Member are separately responsible for processing activities related to the Buyer Protection Services that are not listed in this Agreement unless otherwise specified by the nature of the data processing. In such a case, the Agreement must be amended include such processing. Insofar as joint controllership arises from the nature of the processing, it is subject to this agreement.
Recognition of registered Trusted Shops Buyer Protection Service customers
When integrating the Trustbadge, a hash value of the email address used by a buyer to make a purchase in the Member's shop is transmitted to Trusted Shops after the order has been completed in order to check whether the buyer is already registered for the Trusted Shops Buyer Protection Services. Due to the contractual relationship between the Trusted Shops Buyer Protection Service customer and Trusted Shops, this verification is necessary in order to automatically enable the contractual services for orders placed on third-party websites. The data collected consists of the buyer's order data, and is automatically deleted after verification. Article 6 (1) (f) GDPR constitutes the legal basis for the collection of the order data. The Member must inform data subjects of the legal basis, whereas Trusted Shops is responsible for documenting the weighing of interests. Alternatively, the Member may choose to base the processing on Article 6 (1) (a) GDPR; in this case, the Member is responsible for fulfilling all obligations associated therewith under data protection law.
If the verification process determines that the buyer is already registered for the Buyer Protection Services, the order data necessary for activating the buyer protection for the purchase, i.e. for Trusted Shops fulfilling its contractual obligations under the contract it has with the buyer, is transmitted to Trusted Shops in accordance with Article 6 (1) (b) GDPR. The Member shall comply with the information obligations under the GDPR (in particular under Article 13 GDPR). Trusted Shops also confirms the conclusion of the buyer protection by displaying the Trustcard in the checkout and sending an automatic email, and provides further information to the data subject.
Initial registration for the Buyer Protection Service by clicking on the Trustcard
If the verification process described under Section 2.1 determines that the buyer has not yet registered for the Trusted Shops Buyer Protection Service, the buyer has the possibility to do so via the so-called Trustcard which is integrated into the Member's online presence as part of the Trustbadge. By signing up for the Buyer Protection Service, the order data and the email address are transmitted to Trusted Shops for the purpose of setting up the Buyer Protection Account and securing the online purchase. Both the Member and Trusted Shops are joint controllers in terms of this data transmission. The transmission of order data for the purpose of registering for the Buyer Protection Services, i.e. for Trusted Shops fulfilling its contractual obligations under the contract with the buyer, is based on Article 6 (1) (b) GDPR. Trusted Shops shall comply with the respective information obligations.
Evaluation invitations, evaluation submission and evaluation profile
Insofar as the Member uses the Trusted Shops review system within the context of this Agreement, the following provisions apply. The Member shall invariably be responsible for fulfilling the information obligations under Article 13 GDPR.
Collection of email addresses and sending of review invites
- Sending review invites to Trusted Shops Buyer Protection Service customers
Regarding the dispatch of review invites to Trusted Shops Buyer Protection Service customers, Trusted Shops and the Member are joint controllers. Provided that the Member integrates the Trustbadge, it must inform customers that their order data (email address, order number, order time) will be forwarded to Trusted Shops after placing their order for the purpose of receiving review invites. This is the only way to assign the reviews to a particular order. If the buyer is registered for the Trusted Shops services, the legal basis for this data transfer is the fulfilment of Trusted Shops’ contractual obligations under its contract with the buyer in accordance with Article 6 (1) (b) GDPR. The review invites are sent on the basis of the contractual relationship between the Trusted Shops Buyer Protection Service customer and Trusted Shops in accordance with Article 6 (1) (b) GDPR. Trusted Shops is responsible for sending out the review invites, whereas the Member may decide on the time of sending.
- Sending review invites on behalf of the Member
When using the Review Collector or AutoCollection, review invites are sent on behalf of the Member to buyers who are not registered for the Trusted Shops Buyer Protection Services. The Member and Trusted Shops are joint controllers in terms of the respective data processing. The legal basis for the collection of email addresses and the sending of review invites is Article 6 (1) (a) GDPR. Collecting the necessary data for the purpose of sending review invites is the responsibility of the Member who is solely responsible for obtaining the necessary consent from the data subject, and for all other obligations associated herewith. The Member has to particularly inform its customers of the transmission of the necessary order data to Trusted Shops. Insofar as consent is not obtained for such data transmission, the Member must ensure that an appropriate legal basis is provided and document it. Trusted Shops is responsible for sending out the review invites, whereas the Member may decide on the time of sending.
- Sending review invites using the Trustcard
In case the Member has integrated the Trustbadge but does not offer buyer protection, the buyer may, after checkout, be offered to consent to receiving review invites. If the buyer consents to receiving review invites, Trusted Shops and the Member are joint controllers in terms of sending the review invites. Sending of the review invite and obtaining consent is the responsibility of Trusted Shops, whereas the Member may co-determine the time of sending. Trusted Shops Buyer Protection Service customers receive the review invite even if the Member does not offer Buyer Protection itself. The Member’s responsibilities correspond with the ones laid down in Subsection a).
- The Member sends out review invitations using the Trusted Shops API.
By using the API, the Member sends out review invites using a unique link that is created by Trusted Shops with the help of the order data submitted by the Member. The Member is required to ensure the legal basis for the respective data transfer to Trusted Shops, and is responsible for the fulfilment of all information obligations in this context. Trusted Shops carries out the data processing on the basis of Article 6 (1) (f) GDPR.
- Use of the Reputation Manager
Insofar as it uses the Trusted Shops Reputation Manager to send review invites that contain links referring to third-party platforms, the Member shall be responsible for fulfilling the required information obligations vis-à-vis data subjects. The provisions of this Agreement, in particular the ones contained in Subsections a) – d) of this section, additionally apply to the dispatch of review invite that is based on them.
Providing the review platform and submitting reviews
Trusted Shops is responsible for operating the review platform (in particular, the Control Centre, feedback forms, review forms or other types of forms) on which a data subject submits his/her review. Collecting and publishing the reviews falls under the joint controllership of Trusted Shops the Member. Trusted Shops is responsible for providing the legal basis for the data processing and for fulfilling all information obligations in this context. This also concerns other processing activities carried out on the platform, such as tracking. As a general rule, Trusted Shops is solely responsible for tracking. Tracking falls under the joint controllership of Trusted Shops and the Member insofar as tracking data is shared with the Member. Trusted Shops is responsible for complying with Article 26 (2) GDPR.
If the Member comments on submitted reviews, or contacts the reviewer in any other way, in particular, via the Trusted Shops systems, the Member is obliged under this Agreement to ensure that there is a legal basis for its actions. Trusted Shops is entitled to delete comments if the data subject concerned requests erasure and / or the Member cannot provide the legal basis.
Blocklisting of email addresses
As far as a data subject does not wish to receive review invites, he/she has the possibility to withdraw his/her consent vis-à-vis the Member. Such withdrawal of consent only applies to review invites related to the individual Member in question. Therefore, it is also possible for the data subject to unsubscribe from all review invitations by clicking on the unsubscribe link in the footer of the review invite emails, or by sending an email to Trusted Shops. Trusted Shops will then put the data subject’s email address on a blocklist so that no more review invites - regardless of the Member to whom they refer - are sent out. Trusted Shops is solely responsible for the blocklist which, however, has an impact on processing activities that are subject to the joint controllership.
Trusted Shops provides the Member with various information via the Control Centre that is either personal or based on the processing of personal data. This includes, in particular, the analytics data described in Section 3.2 of this Appendix for the sending and receipt of review invites, the management of submitted review in the form of commenting on reviews or reporting reviews, as well as the configuration options for the sending of review invites and the publication time of reviews.
If the Member wishes to establish links between the Trusted Shops systems and its own systems or systems managed by the Member (in particular, CRM or ticket systems), the Member shall be responsible in this respect for all obligations arising from the GDPR within the scope of its joint controllership with Trusted Shops. In particular, it must ensure that all necessary data protection agreements are in place when it makes use of a third-party provider (e.g., for data processing), and that the necessary conditions for personal data transfers to a third country are met.