September 10, 2020
Please read the Data Processing Addendum (“DPA”) carefully as they form a contract between You (“Customer”) and Us (“Inperium”). As referenced in the Inperium Terms of Service available at https://inperium.com/terms-of-service (“Terms”), this DPA will apply where We and Our Group Companies are processors of personal data. The capitalized terms used in this DPA but not defined herein shall have the same meaning as defined in the Terms. In the event of a conflict between this DPA and the Terms, this DPA shall prevail.
1 ) Data Protection
1.1 Definitions: In this DPA, the following terms shall have the following meanings:
a) “controller”, “processor”, “data subject”, “personal data”, “processing” (and “process”) and “special categories of personal data” shall have the meanings given in Applicable Data Protection Law; and
b) “Applicable Data Protection Law” shall mean the EU General Data Protection Regulation (Regulation 2016/679) (GDPR) and any other applicable data protection laws and regulations.
1.2 Relationship of the parties: Customer (the controller) appoints Inperium as a processor to process the personal data forming part of the Service Data (the “Data”) for the purposes described in the Terms (or as otherwise agreed in writing by the parties) (the “Permitted Purpose”). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law.
1.3 Prohibited data: Customer shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to Inperium for processing.
1.4 International transfers: Where there is international transfer of personal data as set to Processor’s Group Companies or to a country which is not a member state of the European Union, or in another signatory state of the European Economic Area Agreement (“EEA Countries”) or an international organization, the following applies unless explicitly agreed otherwise by the parties in writing:
a) The Standard Contractual Clauses set forth in Annex 2 of this DPA will apply to personal data originating from Customer (who, for the purposes of the Standard Contractual Clauses shall be deemed the “Data Exporter”) that is processed by Inperium (who, for the purposes of the Standard Contractual Clauses shall be deemed the “Data Importer”) or by Inperium’s subcontractor outside of the European Economic Area. If there is any conflict between the Standard Contractual Clauses and this DPA, the Standard Contractual Clauses shall prevail.
b) At Customer’s request, the Standard Contractual Clauses shall be replaced and the Parties shall execute new standard contractual clauses or for transfers to data processors in third countries adopted pursuant to Art. 46 (2) c) or d) GDPR.
c) If and as long as the country where personal data is transferred to a country which is subject to an adequacy decision according to Art. 25 (6) of Directive 95/46/EC or Article 45 (3) GDPR, no Standard Contractual Clauses are required. Once the adequacy decision is repealed or suspended, a) and b) shall automatically apply.
1.5 Confidentiality of processing: Inperium shall ensure that any person it authorizes to process the Data (an “Authorized Person”) shall protect the Data in accordance with Inperium’s confidentiality obligations under the Terms.
1.6 Security: The processor shall implement technical and organizational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorized disclosure of, or access to the Data (a “Security Incident”).
1.7 Subcontracting: Customer consents to Inperium engaging third party subprocessors to process the Data for the Permitted Purpose provided that: (i) Inperium maintains an up-to-date list of its subprocessors at https://inperium.com/privacy-policy/sub-processor, which it shall update with details of any change in subprocessors prior to any such change; (ii) Inperium imposes data protection terms on any subprocessor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and (iii) Inperium remains liable for any breach of this Clause that is caused by an act, error or omission of its subprocessor. Customer may object to Inperium’s appointment or replacement of a subprocessor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Inperium will either not appoint or replace the subprocessor or, if this is not possible, Customer may suspend or terminate the Terms (without prejudice to any fees incurred by Customer prior to suspension or termination).
1.8 Cooperation and data subjects’ rights: Inperium shall provide reasonable and timely assistance to Customer (at Customer’s expense) to enable Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Inperium, Inperium shall promptly inform Customer providing full details of the same.
1.9 Data Protection Impact Assessment: If Inperium believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform Customer and provide reasonable cooperation to Customer (at Customer’s expense) in connection with any data protection impact assessment that may be required under Applicable Data Protection Law.
1.10 Security incidents: If it becomes aware of a confirmed Security Incident, Inperium shall inform Customer without undue delay and shall provide reasonable information and cooperation to Customer so that Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law. Inperium shall further take reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep Customer informed of all material developments in connection with the Security Incident.
1.11 Deletion of Data: Customer may export all Service Data prior to the termination of the Customer’s Account. In any event, following the termination of Customer’s Account by either party, subject to (ii) and (iii) below and the Service Agreement, Service Data will be retained for a period of 14 days from such termination within which Customer may contact Provider to export Service Data; (ii) where the Controller does not use custom mailbox and uses the e-mail feature, if available within the Service(s), e-mails forming part of Service Data are automatically archived for a period of 3 months; and (iii) logs are archived for a period of thirty (30) days in the log management systems, post which logs are retired to a restricted archived cold storage for a period of eleven (11) months (each a “Data Retention Period”). Beyond each such Data Retention Period, Processor shall delete all Service Data in the normal course of operation except as necessary to comply with Processor’s legal obligations, maintain accurate financial and other records, resolve disputes, and enforce its agreements. Service Data cannot be recovered once it is deleted.
Details of processing
Data Subjects are those individuals to whom personal data relates to and are Users or End-Users who interact using the Service(s).
Categories of data
Categories of data refers to the personal data of Users and End-Users, contained in electronic data, text, messages or other materials, submitted to the Service(s) by Customer through Customer’s Account in connection with Customer’s use of the Service(s).
Subject-matter and nature of the processing
The personal data processed will be subject to the basic processing activities required for the provision of the Service(s) by Inperium to the Customer that involves the processing of personal data. Personal data will be subject to those processing activities as may be specified in the Terms and the DPA.
Purpose of the processing
Personal data will be processed for purposes of providing the Service(s) set out in a Form, as further instructed by Customer in its use of the Service(s), and otherwise agreed to in the Terms, this DPA and any applicable Form.
Duration of processing
Personal Data will be processed for the duration of the Terms.
EU Standard Contractual Clauses (processors)
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 entity identified as “Customer” in the DPA
(the “data exporter”)
1111 Lincoln Rd, Suite 760 Miami Beach, FL 33139
(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.
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.
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.
Third-party beneficiary clause
For the purposes of the Clauses:
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 organizational 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, unauthorized 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).
Obligations of the data importer
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 organizational 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 unauthorized access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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.
Mediation and jurisdiction
(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.
Cooperation with supervisory authorities
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 the Clause.
Obligation after the termination of personal data processing services
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
The data exporter is the entity identified as “Customer” in the DPA.
The data importer is the entity identified as “Inperium” in the DPA.
Data Subjects as set forth in Annex 1 of the DPA to which the Clauses are attached.
Categories of data
Categories of data as set forth in Annex 1 of the DPA to which the Clauses are attached.
Special categories of data (if appropriate)
The parties do not anticipate the transfer of special categories of data.
The personal data transferred will be subject to the basic processing activities set forth in Annex 1 of the DPA to which the Clauses are attached.
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):
The technical and organizational security measures implemented by the data importer are as described at https://inperium.com/security.