DATA PROCESSING AGREEMENT
(For Customers Subject to GDPR – Effective Date: May 25, 2018)
THIS DATA PROCESSING AGREEMENT (“DPA”) FORMS PART OF ONE OR MORE AGREEMENTS (THE “UNDERLYING AGREEMENT(S)” THAT REQUIRE Genoo, LLC (“GENOO”) TO PROVIDE CERTAIN SERVICES TO THE CUSTOMER IDENTIFIED IN THE UNDERLYING AGREEMENT(S). IN PROVIDING THE SERVICES TO CUSTOMER PURSUANT TO THE UNDERLYING AGREEMENT(S), GENOO MAY PROCESS PERSONAL DATA ON BEHALF OF CUSTOMER. IF AND TO THE EXTENT GENOO PROCESSES PERSONAL DATA ON BEHALF OF CUSTOMER, THE PARTIES WILL BE SUBJECT TO THE GDPR AND APPLICABLE DATA PROTECTION LAWS AND REGULATIONS. IF AND TO THE EXTENT GENOO PROCESSES PERSONAL DATA ON BEHALF OF CUSTOMER, CUSTOMER WILL BE ACTING IN THE CAPACITY OF CONTROLLER, AND GENOO WILL BE ACTING IN THE CAPACITY OF PROCESSOR. REFERENCES TO THE UNDERLYING AGREEMENT(S) WILL BE CONSTRUED AS INCLUDING THIS DPA.
GENOO AGREES TO COMPLY WITH THE FOLLOWING PROVISIONS WITH RESPECT TO ANY PERSONAL DATA PROCESSED FOR CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES.
CUSTOMER INDICATES ITS AGREEMENT TO COMPLY WITH THE FOLLOWING PROVISIONS WITH RESPECT TO ANY PERSONAL DATA PROCESSED FOR BY GENOO EITHER BY (i) CUSTOMER INDICATING ITS ACCEPTANCE OF THE UNDERLYING AGREEMENT(s), OR (ii) BY ACCESSING OR USING THE SERVICES.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this DPA. “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.
1.2 “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the DPA between Customer and Genoo, but has not signed its own agreement or order form with Genoo and is not a “Customer” as defined under this DPA.
1.3 “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
1.4 “Customer Data” means all electronic data submitted by or on behalf of Customer, or an Authorized Affiliate, to Genoo’s Services.
1.5 “DPA” means these terms and conditions including Attachment 1 to Exhibitattached (Standard Contractual Clauses including related Appendices).
1.6 “Data Protection Laws and Regulations” means all applicable laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under this DPA, including without limitation the GDPR and laws implementing or supplementing the GDPR.
1.7 “Data Subject” means the identified or identifiable person to whom Personal Data relates.
1.8 “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).
1.9 “Personal Data” means any Customer Data relating to (i) an identified or identifiable natural person, and (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations).
1.10 “Processing” and “Process” mean any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.11 “Processor” means the entity which Processes Personal Data on behalf of the Controller.
1.12 “Trust & Compliance Documentation” means the documentation regarding privacy, data security, and Sub-processor information applicable to the specific Services purchased by Customer, as may be updated periodically, and accessible via Genoo’s website at www.Genoo.com/trust-and-compliance, or as otherwise made reasonably available by Genoo.
1.13 “Services” means the software-as-a-service (SaaS) provided by Genoo for managing online marketing activities including but not limited to lead generation and management, email campaigns, landing pages, surveys, and tracking lead responses and activity with the Customer’s websites.
1.14 “Standard Contractual Clauses” means the agreement executed by and between Customer and Genoo and attached as Attachment 1 to Exhibit A, pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
1.15 “Sub-processor” means any Processor engaged by Genoo.
1.16 “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
- Services. Genoo provides the Services to Customer under the Underlying Agreement(s). In connection with the Services, the parties anticipate that Genoo mayProcess Customer Data that contains Personal Data relating to DataSubjects.
- Designation of Controller and Processor.The parties agree that with regard to the Processing of Personal Data, Customer is the Controller, Genoo is the Processor, and that Genoo will engage Sub-processors pursuant to the requirements of thisDPA.
4.1 Genoo will Process Personal Data in accordance with the Data Protection Laws and Regulations that are directly applicable to Genoo’s provision of theServices.
4.2 Customer shall in its use of the Services, Process Personal Data in accordance with the Data Protection Laws and Regulations. Customer’s instructions to Genoo for the Processing of Personal Data shall comply with Data Protection Laws and Regulations; provided, however, that as of the Effective Date hereof, Customer’s initial and complete instructions to Genoo for the Processing of Personal Dataare provided to Genoo in the Underlying Agreement(s). Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired PersonalData.
- Processing Purposes; Confidentiality. Genoo shall keep Personal Data confidential in accordance with the Underlying Agreement(s) and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Underlying Agreement(s)and applicable order form(s); (ii) Processing initiated by Users in their use of the Services;and (iii) Processing to comply with other documented, reasonable instructions provided by Customer (for example, via email) where such instructions are consistent with the terms of the Underlying Agreement. Genoo shall not be required to comply with or observe Customer’s instructions if such instructions would violate the applicable Data Protection Laws and Regulations.
- Scope of Processing.The subject-matter and scope of Processing of Personal Data by Genoo is limited to the performance of the Services pursuant to the Underlying Agreement(s). 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 Appendix 1 to Attachment 1 (Exhibit A)to thisDPA.
- Data Subject Requests.To the extent legally permitted, Genoo shall promptly notify Customer if Genoo receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Factoring into account the nature of the Processing, Genoo shall assist Customer by appropriate organizational and technical measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Genoo shall, upon Customer’s request, provide commercially-reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent that Genoo is legally authorized to do so, and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Genoo’s provision of suchassistance.
- Genoo Personnel.Genoo shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training regarding their responsibilities, and have executed written confidentiality agreements. Genoo shall take commercially-reasonable steps to ensure the reliability of any Genoo personnel engaged in the Processing of Personal Data. Genoo shall ensure that Genoo’s access to Personal Data is limited to those personnel assisting in the provision of the Services in accordance with theUnderlying Agreement(s).
- Data Protection Officer.Genoo shall have appointed, or shall appoint, a data protection officer, provided that such appointment is required byData Protection Laws and Regulations.
- Genoo’s Sub-processors.
10.1 Customer acknowledges and agrees that Genoo may engage third-party Sub-processors in connection with the provision of the Services. Genoo agrees to publish a current list of Sub-processors via Genoo’s applicable Trust & Compliance Documentation. Genoo agrees to promptly notify Customer regarding Genoo’s appointment of any new third-party Sub-processor.
10.2 Inorder to exercise its right to object to Genoo’s use of a new Sub-processor, Customer shall notify Genoo promptly in writing within ten (10) business days after receipt of Genoo’s notice regarding the appointment of each third-party Sub-processor. In the event Customer objects to a new Sub-processor, and that objection is not unreasonable, Genoo will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially-reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Genoo is unable to make available such changewithinareasonabletimeperiod,whichshallin no eventexceedthirty(30)days,Customermay terminatetheapplicableorder form(s)withrespectonlytothoseaspectsoftheServiceswhich cannotbeprovidedbyGenoowithouttheuseoftheobjected-tonewSub-processorbyproviding written notice to Genoo. Genoo will refund Customer any prepaid fees covering the remainder of thetermofsuchorder form(s)followingtheeffectivedateofterminationwithrespecttosuch terminated Services. If termination of applicable order form(s) is not feasible, then Customer may terminate the Underlying Agreement(s) by thirty (30) days prior written notice to Genoo.
10.3 Upon request, Genoo will provide to Customer copies of Sub-processor agreements; provided, however, that to the extent that such Sub-processor agreements contain commercial information or provisions unrelated to information required by applicable Data Protection Laws and Regulations, such unrelated information may be removed by Genoo in its discretion.
10.4 Genoo will not transfer any Personal Data to a Sub-processor which does not provide evidence of a jurisdiction, data transmission mechanism or data protection certification (such as the EU-U.S. and Swiss-U.S. Privacy Shield)which is compliant with Data Protection Laws and Regulations for the onward transfer of Personal Data from the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom
- Flow Down Provisions for Sub-processor Agreements. Liability for Sub-processors.
11.1 Genoo shall impose the same obligations of Genoo regarding GDPR hereunder to its Sub-processors.
11.2 Genoo shall be liable for the acts and omissions of its Sub-processors to the same extent Genoo would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Underlying Agreement(s).
- Security Measures.Genoo shall maintain appropriate organizational and technical measures for protection of the security (including protection against unauthorized or unlawful Processing, and against unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Customer Data), confidentiality, and integrity of Customer Data, as set forth in Genoo’s applicable Trust & Compliance Documentation. Genoo regularly monitors compliance with these measures. Genoo will not materially decrease the overall security of the Services during Customer’s and/or Customer’s Authorized Affiliates’ subscription term.
- Third-Party Certifications and Audit Results.Genoo has attained the third-party certifications and audit results set forth in the Trust & Compliance Documentation. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Underlying Agreement(s), Genoo shall make available to Customer a copy of Genoo’s then most recent third-party certifications or audit results, asapplicable.
- Notifications Regarding Customer Data. Genoo shall (i) implement and maintain reasonable and appropriate data security and incident management policies and procedures, as specified in the Trust & Compliance Documentation, and (ii) notify Customer without undue delay after becoming aware of the unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Genoo or its Sub-processors of which Genoo becomes aware (hereinafter, a “Customer Data Incident”), as required to assist the Customer in ensuring compliance with its obligations to notify the Supervisory Authority in the event of Personal Data breach. Genoo shall make reasonable efforts to identify the cause of such Customer Data Incident, and take those steps as Genoo deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident, to the extent that the remediation is within Genoo’s reasonable control. The obligations set forth herein shall not apply to incidents that are caused by either Customer or Customer’sUsers.
- Return of Customer Data. Genoo shall return Customer Data to Customer, and to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and time periods specified in the Trust & Compliance Documentation, unless the retention of the data is requested from Genoo according to mandatory statutorylaws.
- Authorized Affiliates.The parties agree that, by executing this DPA, the Customer enters into this DPA on behalf of itself, and as applicable, in the name and on behalf of its Authorized Affiliate(s), thereby establishing a separate DPA between Genoo and each such Authorized Affiliate, subject to the provisions of the Underlying Agreement(s). Each Authorized Affiliate agrees to be bound by the obligations under this DPA, and to the extent applicable, the Underlying Agreement(s). An Authorized Affiliate is not and does not become a party to the Underlying Agreement(s), and is only a party to this DPA. All access to and use of the Services by Authorized Affiliate(s) must comply with the terms and conditions of the Underlying Agreement(s) and any violation thereof by an Authorized Affiliate shall be deemed a violation byCustomer.
- Communications. The Customer that is the contracting party to the Underlying Agreement(s) shall remain responsible for coordinating all communication with Genoo under this DPA, and shall be entitled to transmit and receive any communication in relation to this DPA on behalf of its AuthorizedAffiliate(s).
- Exercise of Rights.Where an Authorized Affiliate becomes a party to the DPA, it shall to the extent required under applicable Data Protection Laws and Regulations beentitled to exercise the rights and seek remedies under this DPA, except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Genoo directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Underlying Agreement(s) shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Underlying Agreement(s) shall exercise any such rights under this DPA ina combined manner for all of its Authorized Affiliates together, instead of doing so separately for each Authorized Affiliate.
- Liability.Each party’s liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs involving Customer’s AuthorizedAffiliates, whether in contract, tort or under any other theory of liability, is subject tothe limitation of liability, damage waiver, and liability cap provisions of the Underlying Agreement(s), and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Underlying Agreement(s) and all DPAs taken together. Genoo’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Underlying Agreement(s) and each DPA shall apply in the aggregate for all claims under both the Underlying Agreement(s) and all DPAs established under this Agreement, including by Customer and all of Customer’s Authorized Affiliates, and shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA. Each reference to the DPA herein means this DPA including itsAttachments and Appendices.
- Data Protection Impact Assessment.Upon Customer’s request, Genoo shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Genoo. Genoo shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 21 of this DPA, to the extent required under theGDPR.
- Standard Contractual Clauses.
22.1 The Standard Contractual Clauses apply to (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and its Authorized Affiliates, and (ii) all Affiliates of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed Order Forms for the Services. For the purpose of the Standard Contractual Clauses the aforementioned entities shall be deemed “data exporters.”
22.2 For the purposes of Clause 5 of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Underlying Agreement(s) and applicable order form(s); (b) Processing initiated by Users in their use of the Services and (c) Processing to comply with other reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of theUnderlying Agreement(s).
22.3 The parties agree that the audits described in Clause 5 and Clause 12 of the Standard Contractual Clauses shall be carried out in accordance with thefollowing specifications: following Customer’s written request, and subject to the confidentiality obligations set forth in the Underlying Agreement(s), Genoo shall make available to Customer information regarding the Genoo’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits set forth in the Trust & Compliance Documentation, to the extent that Genoo makes them generally available to its customers.
22.4 The parties agree that the certification of deletion of Personal Data that is described in Clause 12 of the Standard Contractual Clauses shall be provided by Genoo to Customer only upon Customer’srequest.
- Audits. Customer may contact Genoo in accordance with the “Notices” Section of the Underlying Agreement(s) to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse Genoo for any time expended for any such on-site audit at the Genoo’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Genoo shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Genoo. Customer shall promptly notify Genoo and provide information about any actual or suspected non-compliance discovered during an audit. The provision in this section shall by no means derogate from or materially alter the provisions on audits as specified in the Standard ContractualClauses.
- Assignment.This DPA shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of either party, whether by merger, sale of assets, or other agreements or operation of law.
- Force Majeure.Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, terrorism, acts of God, epidemic, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or complete or partial failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
- Order of Precedence.
26.1 With respect to the rights and obligation of the parties vis-à-vis each other, in the event of a conflict between the terms of the Underlying Agreement(s) and this DPA, the terms of this DPA will control.
26.2 In the event of a of a conflict between the terms of this DPA and the Standard Contractual Clauses, the terms of the Standard Contractual Clauseswill control.
- Miscellaneous.This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
ATTACHMENT 1 TO EXHIBIT A
Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organisation: the name and contact information given in connection with the Genoo Agreement(the data exporter),
Name of the data importing organisation: Genoo, LLC, a Minnesota limited liability company located at 1405 Lilac Dr. N #215, Golden Valley, MN 55422 (“Genoo”) (the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in this Attachment 1.
For the purposes of the Clauses:
‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of suchdata;
‘the data exporter’ means the controller who transfers the personaldata;
‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive95/46/EC;
‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the writtensubcontract;
‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals, and in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter isestablished;
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidentalloss, alteration, unauthorised disclosure or access,in particular where the processing involves the transmission of data over a network, and against all other unlawful forms ofprocessing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data whereapplicableare specified in Appendix 1 which forms an integral part of theClauses.
Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-partybeneficiary.
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9to 12, in cases where the data exporter has factually disappeared or has ceasedto exist in law unlessany successorentity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter,inwhichcasethedatasubjectcanenforcethemagainstsuchentity.
The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legalobligationsofthedataexporterbycontract orbyoperationoflawasaresultofwhichit takes on the rights and obligations of the data exporter, in which case the data subject can enforcethem against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under theClauses.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by nationallaw.
Obligations of the data exporter
The data exporter agrees and warrants:
that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordancewith the relevant provisions of the applicable data protection law (and where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of thatState;
that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only onthedataexporter’sbehalfandinaccordancewiththeapplicabledataprotectionlaw and theClauses;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to thiscontract; that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensurea level of security appropriate tothe riskspresented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
that it will ensure compliance with the securitymeasures;
that, if the transferinvolves special categories of data, the data subject has been informed or will be informedbefore, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive95/46/EC;
to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authorityif the data exporter decides to continue the transfer or to lift thesuspension;
to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercialinformation;
that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses;and
that it will ensure compliance with Clause 4(a) to(i).
Obligations of the data importer
The data importer agrees and warrants:
toprocessthepersonaldataonlyonbehalfofthedataexporter andincompliancewith its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate thecontract;
that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the eventof a change in this legislation which is likely to have a substantialadverseeffectonthewarrantiesandobligationsprovidedbytheClauses,it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal datatransferred;
that it will promptly notify the data exporterabout:
any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcementinvestigation,
any accidental or unauthorised access,and
any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to doso;
to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of thesupervisoryauthoritywithregardtotheprocessingofthedatatransferred;
attherequestofthedataexportertosubmit itsdataprocessingfacilitiesforauditofthe processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and inpossession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisoryauthority;
to make available to the data subject upon request a copy of the Clauses, or any existingcontractforsubprocessing,unlesstheClausesorcontractcontaincommercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior writtenconsent;
that the processing services by the subprocessor will be carried out in accordance with Clause11;
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the dataexporter.
The parties agreethat any data subject, who has suffered damageas a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damagesuffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agreesthat the data subject may issue a claim against the data importer as if it were the data exporter, unless any successorentity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforceits rights against suchentity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist inlaw or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessorwith regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity hasassumedtheentirelegalobligationsofthedataexporterordataimporterbycontract or by operation of law, in which case the data subject canenforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the datasubject:
to refer the dispute to mediation, by an independent person or, where applicable, by the supervisoryauthority;
to refer the dispute to the courts in the Member State in which the data exporter isestablished. The parties agreethat the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or internationallaw.
Cooperation with supervisory authorities
The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protectionlaw.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer,and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protectionlaw.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict theClause.
The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of thedataexporter.Wherethedataimportersubcontractsitsobligationsunderthe Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses1. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under theClauses.
The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter isestablished.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisoryauthority.
Obligation after the termination of personal data processing services
The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferredanymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph1.
APPENDIX 1 TO ATTACHMENT 1 (EXHIBIT A)
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is: (i) the legal entity that has executed the Standard Contractual Clauses as the Data Exporter, and (ii) all Affiliates (defined in this DPA) of the Customer that have purchased Services pursuant to the Underlying Agreement(s).
The data importer is: Genoo, LLC provider of the Services to the data exporter and which processes Personal Data upon the instruction of the data exporter and in accordance with the Underlying Agreement(s) and this DPA.
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects: data exporter’s employees, agents, advisors, contractors, or any user or administrator authorized by the data exporter to use the Services (who are naturalpersons).
Categories of data
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
Standard fields include the following:
First and lastname
Business contact information (organization name, email, phone, fax, physical businessaddress, job title, department, industry, buying need, SIC Code, annual revenue, number employees, )
Personal contact information (email, cellphone, Twitter name, LinkedIn profile URL, Facebook page URL, Google Plus profile URL )
Demographic data (gender, birthdate)
Localizationdata (originating IP Address)
(continue adding all standard data fields)
Custom fields selected and added by the data exporter.
Special categories of data (if appropriate)
The Personal Data transferred concern special categories of data selected and entered by the data exporter with custom fields.
The Personal Data transferred will be subject to the following basic processing activities: the objective of Processing Personal Data by the data importer is the performance of the Services pursuant to the Underlying Agreements(s).
APPENDIX 2 TO ATTACHMENT 1 (EXHIBIT A)
This Appendix forms part of the Clauses and must be completed and signed by the parties.
- Technical and Organizational Security Measures
Genoo shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including Personal Data, as set forth in the Trust & Compliance Documentation. Genoo regularly monitors compliance with these safeguards. Genoo will not materially decrease the overall security of the Services during a subscription term.
APPENDIX 3 TO ATTACHMENT 1 (EXHIBIT A)
THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties. The list of subprocessors approved by the data importer as of the effective date of the DPA is as set forth below:
|Subprocessor||Description of Processing|
|Rackspace / Datapipe / GoGrid||Genoo service cloud hosting provider.|
|Full Contact||We will use the email address for leads who submit a lead capture form (with a call to the Full Contact API) to discover any social information about them that uses that email address, and we will augment the lead information with the information discovered, if any.|