DATA PROCESSOR (MINDMATRIX) - TERMS of USE


This DATA PROCESSOR TERMS of USE supplements and amends the Master Services Agreement, Concierge, Integration and any other related previous Addendum or Order (collectively the "Principal Agreement") between You ("Customer" or "Controller" or "Data Exporter") and MindMatrix, Inc. (“MindMatrix”), provider of the Services. Any terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.

The terms and conditions set out below shall be added to the Principal Agreement effective as of May 25, 2018.

Overview

You & MindMatrix

Please read these Terms carefully. By using this service and signing up for an account, you’re agreeing to these Terms. This is a legal agreement. The following definitions should provide an understanding of this agreement.

MindMatrix as Processor

MindMatrix (or the "Service") is a provider of automated software supporting a marketing and sales platform. The platform allows you to create, send, and manage marketing campaigns with the goal of better defined business leads along with efficient sales efforts. In conjunction with this service, MindMatrix will process your personal data and as such is known as the "Processor."

You as Controller

As a Customer of the Service or a representative of an entity that's a Customer of the Service, you will provide the personal data, inclusive of any content that may not be yours, such as contacts acquired or leads generated through use of the service, that shall be processed and as such you are known as the "Controller." As Controller you are responsible for all your personal data, or content supplied.

The Terms of Use between You and MindMatrix shall define privacy requirements, acceptable personal data or content, unacceptable content, along with providing your consent that the personal data can be processed.

If you have any questions about our terms, feel free to contact us or access us through privacy@mindmatrix.net.



PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE OR USE OF THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEBSITE OR THE PRODUCTS.

PART A

1. DEFINITIONS

In this Addendum, the following terms shall have the meanings set out below:

" Applicable Law" - means any laws or regulations, regulatory policies, guidelines or industry codes (whether national or international) which apply to MindMatrix (or any of its Sub-Processors) and/or the provision of or the subject matter of the Services in each case as in force from time to time;

"Customer Group Member" - means Customer or any entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

"Customer Personal Data" - means any Personal Data Processed by MindMatrix on behalf of a Customer Group Member pursuant to or in connection with the Principal Agreement;

"Data Protection Laws" - means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

"EEA" - means the European Economic Area;

"EU Data Protection Laws" - means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

"GDPR" - means EU General Data Protection Regulation 2016/679;

"Personal Data" - means any data that relates to an identified or identifiable natural person and where such data is protected under applicable Data Protection Laws;

"Service(s)" - means the services and other activities to be supplied to or carried out by or on behalf of MindMatrix for Customer Group Members pursuant to the Principal Agreement.

"Standard Contractual Clause(s)" - means the contractual clauses set out in Schedule A;
The terms, "Commission", "Controller", "Processor", "Data Subject(s)", "Member State", "Personal Data Breach", "Processing" and "Supervisory Authority" - shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Customer Personal Data

A. Scope of this Addendum and Role of Parties.

This Terms of Use applies to the Processing of Personal Data by MindMatrix in the course of providing the Services. For the Purposes of the Services and this Terms of Use, Customer and each Customer Group Member are the Controller(s) and MindMatrix is the Processor and shall be Processing Personal Data on the Customer's behalf, the Customer receiving the Services as principal and as agent of each Customer Group Member.

B. Customer Consent Given to Process their Personal Data

The Controller acknowledges that any Customer and/or Customer Group Member, sharing personal data, follow the terms of this agreement and that the Customer and/or Customer Group Member, particularly residing in the EU, have given their consent.

C. Customer Account and Password

Customer is soley responsible for maintaining the security and confidentiality of the information you hold for your Account, including, without limitation, your user name and password, and for any and all activity that occurs through your Account as a result of your failure to keep this information secure and confidential. You hereby agree to notify MindMatrix immediately if you become aware of any unauthorized use of your Account, user name or password, or any other breach of security in connection therewith. You may be held liable for losses incurred by MindMatrix or any third party due to someone else using your Account, user name or password as a result of your failing to keep your Account information secure and confidential.

D. Customer Personal Data or Content

[1] Customer hereby represents and warrants not to store or otherwise use any Personal Data or Content in connection with the Service that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violate any law, rule or regulation; (d) violates any third party's copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity of any person; or (f) contains a virus, malicious code or any other harmful component.

[2] MindMatrix reserves the right, at any time in its sole discretion and without notice to Customer, to pre-screen, review, monitor and or refuse any or all Personal Data or Content from the Service, but MindMatrix has no obligation to do so. Customer agrees to immediately take down, delete or modify any Personal Data or Content that is stored through the Service that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from MindMatrix. In the event that Customer elects not to comply with a request to take down, delete or modify certain Personal Data or Content, MindMatrix reserves the right to directly take down, delete or modify such Personal Data or Content. MindMatrix assumes no liability or responsibility arising from your activities in connection with the Service, including, without limitation, Personal Data or Content that you store or otherwise use in connection with Service.

E. Instructions for Processing Personal Data.

MindMatrix shall Process Personal Data as reasonably necessary for the provision of the Services arising from the Principal Agreement (inclusive of this Terms of Use) and in accordance with Customer's documented instructions which, unless expressly agreed otherwise, shall at all times be consistent and in accordance with the nature of the Principal Agreement. To the extent onward transfer of personal data is necessary or required, by executing this Terms of Use, Customer consents to such onward transfer. MindMatrix may terminate the Principal Agreement if Customer provides instructions to Process Personal Data which are inconsistent with the Principal Agreement, or which MindMatrix could not comply with without (i) incurring material additional costs or (ii) undertaking material variations to the manner in which the Services are provided which variations MindMatrix does not propose to introduce in respect of the majority of its other customers. MindMatrix may Process Personal Data otherwise than in accordance with Customer's instructions if required to do so by Applicable Law. In such case MindMatrix shall inform Customer of that legal requirement, unless prohibited from doing so by Applicable Law.

F. Compliance with Laws.

MindMatrix, in Processing the Customer Personal Data in accordance with Section 2.B. above, shall reasonably comply with all applicable Data Protection Laws. MindMatrix shall not be responsible for complying with Data Protection Laws applicable to Customer or its industry that are not otherwise consistent with the provision of the Services or if, and to the extent that, the relevant provision of Data Protection Law would not also apply to MindMatrix's provision of services equivalent to the Services to other customers. Customer shall comply with all Data Protection Laws applicable to Customer as Controller.

3. MindMatrix Personnel

A. Personnel Reliability.

MindMatrix shall take reasonable steps to (i) require background screening and to ensure the reliability of any personnel who may have access to the Customer Personal Data or the Customer environments in which the Personal Data is processed, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Principal Agreement; and (ii) ensuring that any personnel are informed of the confidential nature of Personal Data, have received training, and are subject to confidentiality obligations or professional or statutory obligations of confidentiality.

B. Data Protection Officer.

MindMatrix has appointed a data protection officer. The appointed person may be reached at privacy@mindmatrix.net.

4. Support in Complying with Data Subject Rights

A. Requests from Data Subjects.

Customer acknowledges, as part of the Services, it is responsible for responding to any Data Subjects' request under any Data Protection Law to exercise the Data Subject's right of access, right of rectification, restriction of Processing, right to be forgotten, data portability, object to processing, or its right not to be subjected to an automated decision-making process ("Data Subject Request").

MindMatrix shall:

[1] to the extent permitted by Applicable Law, promptly notify Customer if it receives a Data Subject Request from a Data Subject; and
[2] taking into account the nature of the Processing, reasonably assist Customer to access Customer Personal Data to the extent that Customer Personal Data is not accessible to Customer (as part of the Services) to fulfill the Customer's obligations, as reasonably understood by Customer, to respond to Data Subject Requests and to comply with Data Protection Laws.

B. Government and Law Enforcement Authority Requests.

Unless prohibited by Applicable Law or a legally-binding request of law enforcement, MindMatrix shall promptly notify Customer of any request by government agency or law enforcement authority for access to or seizure of Personal Data.

5. Support in Data Protection Impact Assessment

MindMatrix shall, to the extent necessary, provide reasonable assistance to Customer or each Customer Group Member with respect to any data protection impact assessment required of the Customer or Customer Group Member by Applicable Law, in each case solely in relation to Processing of Customer Personal Data and taking into account the nature of the Processing.

6. Support in Audits and Inspections

In the event that Customer, any Customer Group Member, a regulator, or Supervisory Authority requires additional information, including information necessary to demonstrate compliance with this Terms of Use, MindMatrix will provide commercially reasonable cooperation to make such information available.

A. Assistance

Subject to Section 6B, below, MindMatrix shall, to the extent necessary, allow for and contribute to audits, including inspections, by any Customer Group Member or an auditor mandated by any Customer Group Member in relation to the Processing of the Company Personal Data.

B. Certain Limitations

Customer shall give MindMatrix reasonable notice of any audit or inspection to be conducted under Section 6A and shall make reasonable endeavors to avoid causing any damages, injury or disruption to MindMatrix's premises, equipment, personnel and business while Customer's personnel are on those premises in the course of an audit or inspection. MindMatrix need not give access to its premises for the purposes of an audit or inspection:
[1] to any individual unless such individual is participating in the audit or inspection;
[2] outside normal business hours, unless the audit or inspection must be conducted on an emergency basis and Customer has provided advanced notice supporting the same;
[3] for the purposes of more than one audit or inspection in any calendar year, unless the Customer considers such audit or inspection reasonably necessary due to genuine concerns regarding MindMatrix's compliance with this Addendum or unless Customer is required to so perform such audit or inspection by a Supervisory Authority.

7. Breach Incident Notification

A. Breach notice.

MindMatrix shall notify Customer within 24 hours upon MindMatrix becoming aware of a confirmed Personal Data Breach affecting Customer Personal Data. To the extent able within the scope of the Services, MindMatrix will provide Customer with sufficient information to allow it to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

B. Investigatory Cooperation.

MindMatrix shall co-operate with Customer and take such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Security

A. Technical and Organizational Measures.

Taking into account the state of the art, the costs of implementation and the nature, scope, and purpose of Processing, as well as the risk and severity for the rights and freedoms of Data Subjects, MindMatrix shall implement and maintain appropriate technical and organizational measures designed to protect the security, confidentiality and integrity of Customer Personal Data, including to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or unauthorized access. MindMatrix regularly monitors compliance with these measures. MindMatrix reserves the right to update its technical and organizational measures and will not materially decrease the overall security of the Services pursuant to the Principal Agreement.

B. Customer Applications.

Customer acknowledges that if at any time it installs, uses or enables products or applications that operate using the Services, but are not part of the Service itself ("Additional Products or Applications"), then by such action Customer is instructing MindMatrix to cause the Service to allow such Additional Products or Applications to operate and potentially access Personal Data. Accordingly, this Addendum does not apply to the processing of Personal Data by such Additional Products or Applications.

C. Return and Deletion of Personal Data.

Upon termination of the Services, MindMatrix shall at Customer's option, return and/or delete any Personal Data retained on the Services in accordance with the terms of the Principal Agreement and not retain any copies unless MindMatrix is required to do so by Applicable Law.

D. Deletion of Personal Data at Request of Customer and/or Customer Group Member.

Upon request of any customer of the Controller's, Controller agrees to notify MindMatrix of said request whereby the Personal Data of said customer and/or Customer Group Member shall be deleted.

9. Limitation of Liability

IN NO EVENT WILL MINDMATRIX, OR MINDMATRIX PARTIES, BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICE, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF MINDMATRIX, OR MINDMATRIX PARTIES, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Location and Storage of Personal Data

Personal Data will be stored at the data center premises selected by MindMatrix as part of the Services (the "Designated Data Center Location").

11. General Terms

Without prejudice to Schedule A, Standard Contractual Clauses, Clause 7 Mediation and Jurisdiction, and Clause 9 Governing Law, or the applicability of any Data Protection Laws:

a. The parties to this Terms of Use hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Terms of Use, including disputes regarding its existence, validity or termination or the consequences of its nullity; and

b. The obligations of MindMatrix arising hereunder are subject to and governed by the laws of the country or territory expressly set forth in the Principal Agreement.

c. With regard to the subject matter of this Terms of Use, in the event of inconsistencies between the provisions of this Terms of Use and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Terms of Use, the provisions of this Terms of Use shall prevail.

d. Customer is responsible for coordinating all communication with MindMatrix on behalf of its Customer Group Members with regard to this Terms of Use. Customer represents that, in relation to this Terms of Use, it, as agent for its Customer Group Members, is authorized to issue instructions; make and receive any communications or notifications; and enter into any agreement expressly contemplated herein for and on behalf of any of its Customer Group Members.

e. Customer and/or its Customer Group Members may only disclose the terms of this Terms of Use to a Supervisory Authority to the extent required by law or such Supervisory Authority. Customer shall reasonably ensure that the Supervisory Authority does not disclose the terms of this Terms of Use to the public or any third party, including: (i) marking copies of this Terms of Use as "Confidential and Commercially Sensitive"; (ii) requesting return of copies of this Terms of Use once the governmental regulatory notification has been completed or approval granted; and (iii) requesting prior notice and consultation before any disclosure of this Terms of Use by the Supervisory Authority.

f. MindMatrix's aggregate liability to the Customer and/or any Customer Group Member, and to any relevant Controller on whose behalf the Customer enters into the Standard Contractual Clauses, arising from a breach of this Terms of Use (including the Standard Contractual Clauses) shall be subject to the terms of the Principal Agreement and for this purpose references to the Customer in the Principal Agreement shall be deemed to include a reference to the relevant Controller. Subject to the foregoing, no third party shall have any rights under this Terms of Use.

g. MindMatrix may, from time to time, make any variations (updates or revisions) to this Terms of Use which MindMatrix reasonably believes to be necessary to address the requirements of any Data Protection Law. If MindMatrix makes such updates or revisions, those variations to the Terms of Use shall become effective upon the expiration of such thirty (30) day period, unless Customer contacts MindMatrix in writing and objects to the variations. If Customer objects to the variations, Customer and MindMatrix shall promptly discuss the variations and negotiate in good faith with a view to agreeing and implementing those variations as soon as practicable.

PART B

In addition to the terms set out in Part A above, the terms set out in this Part B shall apply to the Processing of Personal Data by MindMatrix on behalf of a Customer established in the European Union (EU) or otherwise subject to the requirements of the GDPR.

12. Additional European Terms

A. General Data Protection Regulation.

With effect from 25 May 2018, MindMatrix will Process any Personal Data in accordance with the requirements of GDPR as directly applicable to MindMatrix's provision of the Services.

B. Subject Matter, Nature, Purpose and Duration of Data Processing.

MindMatrix will Process Customer Personal Data to provide the Services. The subject matter, nature and purpose of the Processing shall be as required to perform the Services and shall be determined by the nature of Customer Personal Data submitted for Processing by the Customer. The duration of the Processing of Personal Data shall be for the term of the Principal Agreement.

C. Types of Personal Data and Categories of Data Subjects.

The types of Personal Data and categories of Personal Data, and the categories of Data Subjects, shall be those determined by the Customer having the Customer Personal Data. The obligations and rights of the Customer in relation to the Processing of Personal Data shall be as set out in this Terms of Use and the Principal Agreement and in the Data Protection Laws.

D. Access to Personal Data.

Unless otherwise agreed and notwithstanding Section 10, Location and Storage of Personal Data above, in order to provide the Services MindMatrix only access Personal Data from (i) countries in the EEA, (ii) countries or territories formally recognized by the European Commission as providing an adequate level of data protection ("Adequate Countries") and (iii) the United States provided, in this case, that MindMatrix makes available to Customer a Valid Transfer Mechanism in accordance with Section 12.E. below. When MindMatrix access Personal Data from outside the Designated Data Center Location for the purposes of providing the Services, Customer agrees that such Personal Data may be transferred accordingly.

E. Valid Transfer Mechanisms.

MindMatrix makes available the transfer mechanisms listed below, which shall apply, in order of precedence in the order set out below, to any transfers of Personal Data under this Terms of Use from countries within the European Economic Area (as constituted from time to time) or Switzerland to countries which do not ensure an adequate level of data protection within the meaning of the Data Protection Laws of the foregoing territories (each known as a "third country"), to the extent such transfers are subject to such Data Protection Laws:

  • Country-Specific Arrangement.
    In the event that, after the date that this Terms of Use becomes effective, an alternative mechanism is approved under Data Protection Laws for the transfer of Personal Data to a specific third country, MindMatrix shall be entitled to rely upon this mechanism, subject to being able to demonstrate compliance with its requirements.

  • Standard Contractual Clauses.
    The Standard Contractual Clauses attached as Schedule A (inclusive of Appendices 1 & 2) to this Terms of Use, shall otherwise apply to the Services to the extent that MindMatrix, (US) Inc.'s or any subsequently approved country-specific arrangement, cannot be relied upon.

F. Transfers Required by Applicable Law.

Notwithstanding the foregoing, MindMatrix shall be entitled to access Personal Data from, or transfer Personal Data to, territories outside the EEA other than in the circumstances specified in Section 11.E. if required to do so by Applicable Law. Unless prohibited by Applicable Law, MindMatrix shall inform Customer of the requirement for such transfer or access before taking steps to implement the transfer or access.

13. Additional Terms for Standard Contractual Clauses

A. Entities.

The Standard Contractual Clauses apply (i) to the entity that has executed the Standard Contractual Clauses as the Data Exporter and its Affiliates established within the European Economic Area and Switzerland that utilize the Services. For the purposes of the Standard Contractual Clauses such entities shall be deemed "Data Exporters". Where the Customer is itself a Processor of the Customer Personal Data, the Customer warrants that it is entering into the Standard Contractual Clauses with the authority of, and as agent for, the relevant Controller.

B. Return and Deletion of Personal Data.

For the purposes of Clause 12.1. of the Standard Contractual Clauses, MindMatrix shall return and delete Data Exporter's data in accordance with the Principal Agreement.

C. Conflict.

The parties agree nothing in this Terms of Use is intended to modify or amend the Standard Contractual Clauses. In the event of a conflict between the terms of this Terms of Use or the Principal Agreement and the Standard Contractual Clauses, the Standard Contractual Clauses shall apply in precedence.


EUROPEAN COMMISSION

DIRECTORATE-GENERAL JUSTICE

Directorate C: Fundamental rights and Union citizenship
Unit C.3: Data protection


SCHEDULE A: STANDARD CONTRACTUAL CLAUSES

Commission Decision C(2010)593
Standard Contractual Clauses (processors)

These Clauses are deemed to be amended from time to time to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with EU Data Protection Laws by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR.

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.

The following information regarding the "data exporter" shall remain blank. For the purposes of this Agreement, the user reading and accepting the terms of this Agreement is the data exporter. The applicable data exporter information listed below, along with the acceptance of terms, is hosted and referenced to this Agreement from CLIENT NAME system.

Name of the data exporting organization: the CLIENT - for data exporter information and acceptance of terms.

Name:-
........................................................................................................................................

Address:

Tel.:..............................................................................; fax:.........................................................................; e-mail:

Other information needed to identify the organization:

....................................
(the data exporter)

And

Name of the data importing organisation: MindMatrix, Inc.

Address: 2403 Sidney Street, Suite150, Pittsburgh, PA 15203

Tel.:412.381.0230 x.1092; e-mail: brian.grunebach@mindmatrix.net

Other information needed to identify the organization:

MindMatrix, Inc.

(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 Appendix 1.

Background

The data exporter has entered into a data processing addendum ("DPA") with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer's execution of, and compliance with, the terms of these Clauses. The data exporter, the controller, acknowledges that any Customer and/or Customer Group Member, sharing personal data, follow the terms of this agreement and that the Customer and/or Customer Group Member, particularly residing in the EU, have given their consent.

Clause 1

Definitions

For the purposes of the Clauses:

(a) '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 such data;

(b) 'the data exporter' means the controller who transfers the personal data;

(c) '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 Directive 95/46/EC;

(d) '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 written subcontract;

(e) '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 is established;

(f) 'technical and organisational security measures' means those measures aimed at protecting 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.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. 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-party beneficiary.

2. 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 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity 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, in which case the data subject can enforce them against such entity.

3. 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 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, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

4. 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 national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with 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 that State;

(b) 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 on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) 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 ensure a level of security appropriate to the risks presented 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;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, 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 Directive 95/46/EC;

(g) 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 authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) 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 commercial information;

(i) 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

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer 1

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with 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 the contract;

(b) 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 event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, 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;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

  • (i) 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 enforcement investigation,

  • (ii) any accidental or unauthorised access, and

  • (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) 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 the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial 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;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as 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 damage suffered.

2. 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 agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3. 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 in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. 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 data subject:

  • (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

  • (b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that 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 international law.

Clause 8

Cooperation with supervisory authorities

1. 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 protection law.

2. 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 protection law.

3. 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).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

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 the Clause.

Clause 11

Subprocessing

1. 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 the data exporter. Where the data importer subcontracts its obligations under the 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 Clauses. 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.

2. 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 the Clauses.

3. 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 importer is established, namely the Commonwealth of Pennsylvania, United States.

1 shall be governed by the law of the Member State in which the data importer is established, namely the Commonwealth of Pennsylvania, United States.

4. 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 supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

1. 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 transferred anymore.

2. 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 paragraph 1.

On behalf of the data exporter:

Name (See CUSTOMER for data exporter information and acceptance of terms.):
Position:
Address:



Other information necessary in order for the contract to be binding (if any):

e-signature via electronic portal acceptable noting CUSTOMER and data exporter.

Signature:................................................

(stamp of organization not applicable if e-signature provided)

On behalf of the data importer:
Name: Harbinder S. Khera
Position: President
Address: 2403 Sidney Street, Pittsburgh, PA 15203
Other information necessary in order for the contract to be binding (if any):

Signature:................................................


(signature on file in data exporter's system)

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

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.

Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
..........exporting contact records for email marketing, asset personalization and lead generation.

Data importer
The data importer is (please specify briefly activities relevant to the transfer):
..........managing contact records for email marketing, asset personalization and lead generation.

Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
..........contact record information, such as first name, last name email addresses.

Categories of data
The personal data transferred concern the following categories of data (please specify):
..........contact record information, such as first name, last name, email addresses related business information, but shall EXCLUDE any personal data such as social security #'s, race, religion, credit history and the like.

Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
..........not applicable.

Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
..........email marketing, asset personalization and lead generation.

DATA EXPORTER (See data exporter information and acceptance of terms.):
Name:...................................
Authorised Signature:...................................
DATA IMPORTER
Name: Harbinder S. Khera
Authorised Signature (signature on file in data exporter's system)

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

1. Data accessed using 256-bit encryption (HTTPS)

2. Encrypted passwords. Passwords not even available to Siteadmin.

3. Applications secure against SQL injections and passed all industry standard secure application deployment and development.

4. Automatic lockout after 5 failed login attempts.

5. Secured data storage.