Data Processing Addendum
This Data Processing Addendum (this “DPA”), effective as of the DPA Effective Date (defined below), is entered into by and between NetClicks Ltd (ConvertBar’s parent company’s registered name; “we”, or “us”) and the customer that electronically accepts or otherwise agrees or opts-in to this DPA (“Customer”, or “you”).
You have entered into one or more agreements with us (each, as amended from time to time, an “Agreement”) governing the provision of the ConvertBar visitor engagement platform, described in further detail at convertbar.com (the “Service”). This DPA will amend the terms of the Agreement to reflect the parties’ rights and responsibilities with respect to the processing and security of Visitors data under the Agreement. If you are accepting this DPA in your capacity as an employee, consultant or agent, you represent that you are an employee, consultant or agent, and that you have the authority to bind to this DPA.
The following definitions apply to this DPA:
- “Alternative Transfer Solution” means a solution, other than the Model Contract Clauses, that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
- “Visitor Data” means data you submit to, store on, or send to us via the Service.
- “Data Incident” means a breach of ConvertBar’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Visitors Data on systems that are managed and controlled by ConvertBar. Data Incidents will not include unsuccessful attempts or activities that do not compromise the security of Visitor Data, including, without limitation, pings, port scans, denial of service attacks, network attacks on firewall or networked systems, or unsuccessful login attempts.
- “DPA Effective Date” means either (i) May 25, 2018, if the date on which you electronically accept or otherwise agree or opt-in to this DPA is prior to that date; or (ii) the date on which you electronically accept or otherwise agree or opt-in to this DPA, if that date is after May 25, 2018.
- “EEA” means the European Economic Area.
- “European Data Protection Legislation” means, as applicable: (a) the GDPR; and/or (b) the Federal Data Protection Act of 19 June 1992 (Switzerland).
- “GDPR” means 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.
- “Model Contract Clauses” or “MCCs” means the standard data protection clauses for the transfer of personal data to processors established in third countries that do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
- “Non-European Data Protection Legislation” means data protection or privacy legislation other than the European Data Protection Legislation.
- “Notification Email Address” means the email address(es) that you designate to receive notifications when you create an account to use the Service. You agree that you are solely responsible for ensuring that your Notification Email Address is current and valid at all times.
- “Personal Data” means any personal data (as that term is defined by European Data Protection Legislation) contained within the Visitor Data.
- “Subprocessor” means a third party that we use to process Visitor Data in order to provide parts of the Service and/or related technical support.
- “Term” means the period from the DPA Effective Date until the date the Agreement terminates or expires.
The terms “personal data”, “sensitive personal data” “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this DPA have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the MCCs, in each case irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies.
Roles, Compliance and Authorization
Processor and Controller Responsibilities: If European Data Protection Legislation applies to the processing of Visitors Personal Data, the parties acknowledge and agree as follows: (i) that the subject matter and details of the processing are described in Appendix 1 hereto; (ii) that ConvertBar is a processor of Visitors Personal Data under European Data Protection Legislation; (iii) that you are a controller or processor, as applicable, of the Personal Data under European Data Protection Legislation; and (iv) that each of us will comply with our obligations under applicable European Data Protection Legislation with respect to the processing of the Personal Data.
Authorization by Third Party Controller: If European Data Protection Legislation applies to the processing of Personal Data and you are a processor of the Personal Data, you warrant to us that your instructions and actions with respect to that Personal Data, including your appointment of ConvertBar as another processor, have been authorized by the relevant controller.
Responsibilities Under Non-European Legislation: If Non-European Data Protection Legislation applies to either party’s processing of Personal Data, the parties acknowledge and agree that each of us will comply with any applicable obligations under that legislation with respect to the processing of Personal Data.
Scope of Processing
Customer Authorization: By entering into this DPA, you hereby authorize and instruct us to process the Personal Data: (i) to provide the Service, and related technical support; (ii) as otherwise permitted or required by your use of the Service and/or your requests for technical support; (iii) as otherwise permitted or required by the Agreement, including this DPA; and (iv) as further documented in any other written instructions that you give us, provided we acknowledge those instructions in writing as constituting processing instructions for the purposes of this DPA. We will not process the Personal Data for any other purpose, unless required to do so by applicable law or regulation.
Authorized Users: By entering into this DPA, if you invite or are invited to join an account as an Authorized User, and you accept the invitation, you are agreeing that certain parts of your information will be shared with the account holder and other members within the account. In particular, the account holder will have access to your name, email address, avatar (if any) and visibility of your messages and other created content within the Service, and other members may have access to your name, email address and avatar (if any). Any information you create as an Authorized User in an account, including Visitor Data or Third-Party Services you link to, will be available to some or all members of that account. You are solely responsible for any information you create in this account, which is posted at your own risk.
Prohibition on Sensitive Data. You will not submit, store, or send any sensitive data or special categories of Personal Data (collectively, “Sensitive Data”) to us for processing, and you will not permit nor authorize any of your employees, agents, contractors, or data subjects to submit, store, or send any Sensitive Data to us for processing. You acknowledge that we do not request or require Sensitive Data as part of providing the Service to you, that we do not wish to receive or store Sensitive Data, and that our obligations in this DPA will not apply with respect to Sensitive Data.
Deletion During Term: We will enable you to delete Personal Data during the Term in a manner that is consistent with the functionality of the Service. If you use the Service to delete any Personal Data in a manner that would prevent you from recovering the Personal Data at a future time, you agree that this will constitute an instruction to us to delete the Personal Data from our systems in accordance with our standard processes and applicable law. We will comply with this instruction as soon as reasonably practicable, but in all events in accordance with applicable law.
Security Measures: We will implement and maintain appropriate technical and organizational measures to protect Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (collectively, the “Security Measures”). The Security Measures will have regard to the state of the art, the costs of implementation, and nature, scope, context and purposes of the processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. The Security Measures will include, as appropriate: (i) the pseudonymization and/or encryption of Personal Data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of data processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner, in the event of a Data Incident; and (iv) a process for regularly testing, accessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of data processing. We may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Service.
Security Compliance by our Staff: We will take appropriate steps to ensure that our employees, contractors, and Subprocessors comply with the Security Measures to the extent applicable to their scope of performance, including ensuring that all persons authorized to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligations of confidentiality.
Data Incidents: If we become aware of a Data Incident, we will notify you promptly and without undue delay, and will take reasonable steps to minimize harm and secure Data. Any notifications that we send you will be sent to your Notification Email Address and will describe, to the extent possible, the details of the Data Incident, the steps we have taken to mitigate the potential risks, and any suggestions we have for you to minimize the impact of the Data Incident. We will not assess the contents of any Data in order to identify information that may be subject to specific legal requirements. You are solely responsible for complying with any incident notification laws that may apply to you, and to fulfilling any third party notification obligations related to any Data Incident(s). Our notification of or response to a Data Incident under this Section will not constitute an acknowledgement of fault or liability with respect to the Data Incident.
Your Security Responsibilities: You agree that, without prejudice to our obligations: (i) you are solely responsible for your use of the Service, including making appropriate use of the Service to ensure a level of security appropriate to the risk in relation to Visitor Data, securing any account authentication credentials, systems, and devices you use to use the Service. You understand and agree that we have no obligation to protect Data that you elect to store or transfer outside of our or our Subprocessors’ systems (e.g., offline or on-premise storage). You are solely responsible for evaluating whether the Service and our commitments under this Section 4 meet your needs, including with respect to your compliance with any of your security obligations under European Data Protection Legislation and/or Non-European Data Protection Legislation, as applicable. You acknowledge and agree that – taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the processing of Personal Data, as well as the risks to individuals – the Security Measures that we implement in this DPA provide a level of security appropriate to the risk in respect to the Data.
Audit Rights: If European Data Protection Legislation applies to the processing of Personal Data, we will allow an internationally-recognized independent auditor that you select to conduct audits to verify our compliance with our obligations in this DPA. Following our receipt of your request, the parties will discuss and agree in advance on the reasonable start date, scope, duration, and security and confidentiality controls applicable to the audit. You will be responsible for all costs associated with the audit. You agree not to exercise your audit rights more than once in any twelve (12) calendar month period, except (i) if and when required by a competent data protection authority; or (ii) an audit is necessary due to a Data Incident.
Data Subject Rights; Data Export
Access; Rectification; Restricted Processing; Portability. During the Term, we will, in a manner consistent with the functionality of the Service, enable you to: (i) access the Visitor Data; (ii) restrict the processing of Visitor Data; (iii) delete Visitor Data; and (iv) export Visitor Data.
Cooperation; Data Subjects’ Rights: We will provide you, at your expense, with all reasonable and timely assistance to enable you to respond to: (i) requests from data subjects who wish to exercise any of their rights under European Data Protection Legislation; and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Visitor Data. In the event that any such request, correspondence, enquiry or complaint is made directly to us, we will promptly inform you of it via your Notification Email Address and provide you with as much detail as reasonably possible.
Data Storage and Processing Facilities: You agree that we may, subject to Section 6.2, store and process Data in the United States and any other country in which we or our sub processors maintain facilities.
Transfers of Data out of the EEA; Your Responsibilities: If the storage and/or processing of Personal Data as described in Section 6.1 involves transfers of Personal Data out of the EEA and European Data Protection Legislation applies to the transfers of such data (collectively, “Transferred Personal Data”), we will, at our sole discretion, either (i) ensure that we (as the data importer) have entered into MCCs with you (as the data exporter), and that the transfers are made in accordance with the MCCs; or (ii) ensure that the transfers are made in accordance with an Alternative Transfer Solution. With respect to Transferred Personal Data, you agree that if we reasonably require you to enter into MCCs with respect to such transfers as required by European Data Protection Legislation, you will promptly do so; similarly, if we reasonably require you to use an Alternative Transfer Solution and we request that you take any action (including, without limitation, execution of documents) required to give full effect to that solution, you will promptly do so.
Consent to Engagement: You specifically authorize us to engage third parties as Subprocessors. Whenever we engage a Subprocessor, we will enter into a contract with that Subprocessor to help ensure that the Subprocessor only accesses and uses Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement and this DPA.
List of Subprocessors: A list of our current Subprocessors are: Amazon Web Services, Groove and MailGun. We will update this list from time to time upon written notice to you, as our Subprocessors change.
Objections; Sole Remedy: Within ninety (90) days of our engagement of any Subprocessor (as determined by the date that we update the list of Subprocessors described in Section 7.2, above), you have the right to object to the appointment of that Subprocessor by providing documentary evidence that reasonably shows that the Subprocessor does not or cannot comply with the requirements set forth in this DPA (each, an “Objection”). If we do not remedy or provide a reasonable workaround for your Objection within a reasonable time, you may, as your sole remedy and our sole liability for your Objection, terminate the Agreement for your convenience, and without further liability to either party. We will not owe you a refund of any fees you have paid in the event you decide to terminate the Agreement pursuant to this Section.
You acknowledge that we are required under European Data Protection Legislation (i) to collect and maintain records of certain information, including, among other things, the name and contact detail of each processor and/or controller on whose behalf we are acting and, where applicable, of such processor’s or controller’s local representative and data protection officer; and (ii) to make such information available to the supervisory authorities. Accordingly, if European Data Protection Legislation applies to the processing of Personal Data, you will, when requested, provide this additional information to us, and ensure that the information is kept accurate and up-to-date.
Data Protection Impact Assessment
If we believe or become aware that our processing of Customer Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, we will promptly inform you of that risk, and provide you with reasonable and timely assistance as you may require in order to conduct a data protection impact assessment and, if necessary, consult with the relevant data protection authority.
There are no third party beneficiaries to this DPA. Except as expressly provided herein, nothing in this DPA will be deemed to waive or modify any of the provisions of the Agreement, which otherwise remains in full force and effect. Specifically, nothing in this DPA will affect any of the terms of the Agreement relating to ConvertBar’s limitations of liability, which will remain in full force and effect. If you have entered into more than one Agreement with us, this DPA will amend each of the Agreements separately. In the event of a conflict or inconsistency between the terms of this DPA and the terms of the Agreement, the terms of this DPA will control.