“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Data Protection Law” means all applicable legislation relating to data protection and privacy including without limitation the EU Data Protection Directive 95/46/EC and all local laws and regulations which amend or replace any of them, including the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time. The terms “process”, “processes” and “processed” will be construed accordingly.
“Data Subject” means the individual to whom Personal Data relates.
“GDPR” means the General Data Protection 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.
“Instruction” means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.
“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses” means the clauses attached hereto as Exhibit 1 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.
Within the scope of the Agreement and in its use of the services, Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data. For the avoidance of doubt, Controller’s instructions for the Processing of Personal Data shall comply with the Data Protection Law. This DPA is Customer’s complete and final instruction to CloudNCo, Inc. in relation to Personal Data and that additional instructions outside the scope of DPA would require prior written agreement between the parties. Instructions shall initially be specified in the Agreement and may, from time to time thereafter, be amended, amplified or replaced by Controller in separate written instructions (as individual instructions).
Controller shall inform Processor without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data.
Compliance with Instructions. The parties acknowledge and agree that Customer is the Controller of Personal Data and CloudNCo, Inc. is the Processor of that data. Processor shall collect, process and use Personal Data only within the scope of Controller’s Instructions. If the Processor believes that an Instruction of the Controller infringes the Data Protection Law, it shall immediately inform the Controller without delay. If Processor cannot process Personal Data in accordance with the Instructions due to a legal requirement under any applicable European Union or Member State law, Processor will (i) promptly notify the Controller of that legal requirement before the relevant Processing to the extent permitted by the Data Protection Law; and (ii) cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the Controller issues new instructions with which Processor is able to comply. If this provision is invoked, Processor will not be liable to the Controller under the Agreement for any failure to perform the applicable services until such time as the Controller issues new instructions in regard to the Processing.
Security. Processor shall take the appropriate technical and organizational measures to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, described under Appendix 2 to the Standard Contractual Clauses. Such measures include, but are not be limited to:
Upon Controller’s request, Processor shall provide a current Personal Data protection and security program relating to the Processing hereunder.
Processor will facilitate Controller’s compliance with the Controller’s obligation to implement security measures with respect to Personal Data (including if applicable Controller’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR), by (i) implementing and maintaining the security measures described under Appendix 2, (ii) complying with the terms of Section 4.4 (Personal Data Breaches); and (iii) providing the Controller with information in relation to the Processing in accordance with Section 5 (Audits).
Confidentiality. Processor shall ensure that any personnel whom Processor authorizes to process Personal Data on its behalf is subject to confidentiality obligations with respect to that Personal Data. The undertaking to confidentiality shall continue after the termination of the above-entitled activities.
Personal Data Breaches. Processor will notify the Controller as soon as practicable after it becomes aware of any of any Personal Data Breach affecting any Personal Data. At the Controller’s request, Processor will promptly provide the Controller with all reasonable assistance necessary to enable the Controller to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if Controller is required to do so under the Data Protection Law.
Data Subject Requests. Processor will provide reasonable assistance, including by appropriate technical and organizational measures and taking into account the nature of the Processing, to enable Controller to respond to any request from Data Subjects seeking to exercise their rights under the Data Protection Law with respect to Personal Data (including access, rectification, restriction, deletion or portability of Personal Data, as applicable), to the extent permitted by the law. If such request is made directly to Processor, Processor will promptly inform Controller and will advise Data Subjects to submit their request to the Controller. Controller shall be solely responsible for responding to any Data Subjects’ requests. Controller shall reimburse Processor for the costs arising from this assistance.
Sub-Processors. Processor shall be entitled to engage sub-Processors to fulfil Processor’s obligations defined in the Agreement only with Controller’s written consent. For these purposes, Controller consents to the engagement as sub-Processors of Processor’s affiliated companies and the third parties listed in Exhibit 2. For the avoidance of doubt, the above authorization constitutes Controller’s prior written consent to the sub-Processing by Processor for purposes of Clause 11 of the Standard Contractual Clauses.
If the Processor intends to instruct sub-Processors other than the companies listed in Exhibit 2, the Processor will notify the Controller thereof in writing (email to the email address(es) on record in Processor’s account information for Controller is sufficient) and will give the Controller the opportunity to object to the engagement of the new sub-Processors within 30 days after being notified. The objection must be based on reasonable grounds (e.g. if the Controller proves that significant risks for the protection of its Personal Data exist at the sub-Processor). If the Processor and Controller are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party. Controller shall receive a refund of any prepaid but unused fees for the period following the effective date of termination.
Where Processor engages sub-Processors, Processor will enter into a contract with the sub-Processor that imposes on the sub-Processor the same obligations that apply to Processor under this DPA. Where the sub-Processor fails to fulfil its data protection obligations, Processor will remain liable to the Controller for the performance of such sub-Processors obligations.
Where a sub-Processor is engaged, the Controller must be granted the right to monitor and inspect the sub-Processor’s activities in accordance with this DPA and the Data Protection Law, including to obtain information from the Processor, upon written request, on the substance of the contract and the implementation of the data protection obligations under the sub-Processing contract, where necessary by inspecting the relevant contract documents.
The provisions of this Section 4.6 shall mutually apply if the Processor engages a sub-Processor in a country outside the European Economic Area (“EEA”) not recognized by the European Commission as providing an adequate level of protection for personal data. If, in the performance of this DPA, CloudNCo, Inc. transfers any Personal Data to a sub-processor located outside of the EEA, CloudNCo, Inc. shall, in advance of any such transfer, ensure that a legal mechanism to achieve adequacy in respect of that processing is in place.
Deletion or Retrieval of Personal Data. Other than to the extent required to comply with Data Protection Law, following termination or expiry of the Agreement, Processor will delete all Personal Data (including copies thereof) processed pursuant to this DPA. If Processor is unable to delete Personal Data for technical or other reasons, Processor will apply measures to ensure that Personal Data is blocked from any further Processing.
Controller shall, upon termination or expiration of the Agreement and by way of issuing an Instruction, stipulate, within a period of time set by Processor, the reasonable measures to return data or to delete stored data. Any additional cost arising in connection with the return or deletion of Personal Data after the termination or expiration of the Agreement shall be borne by Controller.
Controller may, prior to the commencement of Processing, and at regular intervals thereafter, audit the technical and organizational measures taken by Processor.
For such purpose, Controller may, e.g.,
Processor shall, upon Controller’s written request and within a reasonable period of time, provide Controller with all information necessary for such audit, to the extent that such information is within Processor’s control and Processor is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.
In case of any conflict, this DPA shall take precedence over the regulations of the Agreement. Where individual provisions of this DPA are invalid or unenforceable, the validity and enforceability of the other provisions of this DPA shall not be affected.
Upon the incorporation of this DPA into the Agreement, the parties indicated in Section 7 below (Parties to this DPA) are agreeing to the Standard Contractual Clauses (where and as applicable) and all appendixes attached thereto. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Exhibit 1, the Standard Contractual Clauses shall prevail.
Effective 25 May 2018 CloudNCo, Inc. will process Personal Data in accordance with the GDPR requirements contained herein which are directly applicable to CloudNCo, Inc.'s provision of the Services.
This DPA is an amendment to and forms part of the Agreement. Upon the incorporation of this DPA into the Agreement (i) Controller and the CloudNCo, Inc. entity that are each a party to the Agreement are also each a party to this DPA, and (ii) to the extent that CloudNCo, Inc. Inc. is not the party to the Agreement, CloudNCo, Inc. is a party to this DPA, but only with respect to agreement to the Standard Contractual Clauses of the DPA, this Section 7 of the DPA, and to the Standard Contractual Clauses themselves.
The legal entity agreeing to this DPA as Controller represents that it is authorized to agree to and enter into this DPA for, and is agreeing to this DPA solely on behalf of, the Controller.
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,
CloudNCo, Inc., 300 Beale Street #613, San Francisco, CA 94105 (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:
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
Obligations of the data exporter
The data exporter agrees and warrants:
Obligations of the data importer
The data importer agrees and warrants:
Mediation and jurisdiction
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
This Appendix forms part of the Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data importer is CloudNCo, Inc., a marketing automation software.
Categories of data subjects set out under Section 2 of the Data Processing Agreement to which the Clauses are attached.
Categories of personal data set out under Section 2 of the Data Processing Agreement to which the Clauses are attached.
The parties do not anticipate the transfer of special categories of data.
The processing activities set out under Section 2 of the Data Processing Agreement to which the Clauses are attached:
This Appendix forms part of the Clauses.
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):
CloudNCo, Inc. currently observes the security practices described in this Appendix 2. Notwithstanding any provision to the contrary otherwise agreed to by data exporter, CloudNCo, Inc. may modify or update these practices at its discretion provided that such modification and update does not result in a material degradation in the protection offered by these practices. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the Agreement.
i) Preventing Unauthorized Product Access
Outsourced processing: CloudNCo, Inc. hosts its Service with outsourced cloud infrastructure providers. Additionally, CloudNCo, Inc. maintains contractual relationships with vendors in order to provide the Service in accordance with our Data Processing Agreement. CloudNCo, Inc. relies on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors. Physical and environmental security: CloudNCo, Inc. hosts its product infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications. Authentication: CloudNCo, Inc. implemented a uniform password policy for its customer products. Customers who interact with the products via the user interface must authenticate before accessing non-public customer data. Authorization: Customer data is stored in multi-tenant storage systems accessible to Customers via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of CloudNCo, Inc.’s products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
ii) Preventing Unauthorized Product Use
CloudNCo, Inc. implements industry standard access controls and detection capabilities for the internal networks that support its products. Access controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules. Intrusion detection and prevention: CloudNCo, Inc. implemented a Web Application Firewall (WAF) solution to protect hosted customer websites and other internet-accessible applications. The WAF is designed to identify and prevent attacks against publicly available network services. Static code analysis: Security reviews of code stored in CloudNCo, Inc.’s source code repositories is performed, checking for coding best practices and identifiable software flaws. Penetration testing: CloudNCo, Inc. maintains relationships with industry recognized penetration testing service providers for four annual penetration tests. The intent of the penetration tests is to identify and resolve foreseeable attack vectors and potential abuse scenarios.
iii) Limitations of Privilege & Authorization Requirements
Product access: A subset of CloudNCo, Inc.’s employees have access to the products and to customer data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. All CloudNCo, Inc. employees are required to conduct themselves in a manner consistent with company guidelines, and ethical standards.
In-transit: CloudNCo, Inc. makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces and for free on every customer site hosted on the CloudNCo, Inc. products. CloudNCo, Inc.’s HTTPS implementation uses industry standard algorithms and certificates.
At-rest: CloudNCo, Inc. stores user passwords following policies that follow industry standard practices for security. With effect 25 May 2018, CloudNCo, Inc. has implemented technologies to ensure that stored data is encrypted at rest.
Detection: CloudNCo, Inc. designed its infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. CloudNCo, Inc. personnel, including security, operations, and support personnel, are responsive to known incidents.
Response and tracking: CloudNCo, Inc. maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, CloudNCo, Inc. will take appropriate steps to minimize product and Customer damage or unauthorized disclosure.
Communication: If CloudNCo, Inc. becomes aware of unlawful access to Customer data stored within its products, CloudNCo, Inc. will: 1) notify the affected Customers of the incident; 2) provide a description of the steps CloudNCo, Inc. is taking to resolve the incident; and 3) provide status updates to the Customer contact, as CloudNCo, Inc. deems necessary. Notification(s) of incidents, if any, will be delivered to one or more of the Customer’s contacts in a form CloudNCo, Inc. selects, which may include via email or telephone.
Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime.
Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones.
Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.
List of Sub-Processors