To obtain a signed copy of this addendum, the company must:
File a request for a signed DPA to email@example.com with the Subject: "GDPR DPA SIGNED" from the email address used for your PushPro account. Include your name, title and company.
We will return you a signed copy of the DPA
This PushPro Data Processing Agreement (“DPA”), which includes the Standard Contractual Clauses adopted by the European Commission, as applicable, reflects the parties’ agreement with respect to the terms governing the Processing of Personal Data under the PushPro Terms and Conditions (the “Agreement”). This DPA is an amendment to the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement, an Order or an executed amendment to the Agreement. Upon its incorporation into the Agreement, the DPA will form a part of the Agreement.
We periodically update these terms. If you have an active PushPro subscription, we will let you know when we do via an email.
The terms of this DPA shall follow the terms of the Agreement. Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.
In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
"Applicable Laws" means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;
"Company Personal Data" means any Personal Data processed by a Contracted Processor on behalf of the Company pursuant to or in connection with the Terms & Conditions;
"Contracted Processor" means Vendor or a Subprocessor;
"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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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;
"Restricted Transfer" means: 8.1 a transfer of Company Personal Data from the Company to a Contracted Processor; or 8.2 an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 5.4.3 or 11 below;
"Services" means the services and other activities to be supplied to or carried out by or on behalf of Vendor for the Company pursuant to the Terms & Conditions;
"Standard Contractual Clauses" means the contractual clauses published by the European Commission, as may from time to time be amended by the European Commission, which govern the transfer of Personal Data to countries outside the European Economic Area and which do not meet the appropriate safeguards for the treatment of Personal Data;
"Subprocessor" means any person (including any third party, but excluding an employee of Vendor or any of its subcontractors) appointed by or on behalf of Vendor to Process Personal Data on behalf of the Company in connection with the Terms & Conditions;
The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. Processing of Company Personal Data
The Vendor shall: 1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data 1.2 not process Company Personal Data other than on the relevant Company’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Vendor or the relevant Vendor Affiliate shall to the extent permitted by Applicable Laws inform the Company of that legal requirement before the relevant Processing of that Personal Data.
The Company: 2.1 instructs Vendor (and authorizes Vendor to instruct each Subprocessor) to: 2.1.1 process Company Personal Data 2.1.2 transfer Company Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Terms & Conditions.
Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of the Company Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Company may make reasonable amendments to Annex 1 by written notice to Vendor from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 2.3) confers any right or imposes any obligation on any party to this Addendum.
3. Vendor Personnel
Vendor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Terms & Conditions, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Vendor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
In assessing the appropriate level of security, Vendor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
The Company authorizes Vendor to appoint (and permit each Subprocessor appointed in accordance with this section 5 to appoint) Subprocessors in accordance with this section 5 and any restrictions in the Terms & Conditions.
Vendor may continue to use those Sub-processors already engaged by Vendor as at the date of this Addendum, subject to Vendor as soon as practicable meeting the obligations set out in section 5.4.
Vendor shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 3 days of receipt of that notice, Company notifies Vendor in writing of any objections (on reasonable grounds) to the proposed appointment the Vendor shall not appoint (or disclose any Company Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by the Company and Company has been provided with a reasonable written explanation of the steps taken.
With respect to each Subprocessor, Vendor shall: 4.1 before the Subprocessor first Processes Company Personal Data (or, where relevant, in accordance with section 5.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Company Personal Data required by the Terms & Conditions; 4.2 ensure that the arrangement between on the one hand (a) Vendor, or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR; 4.3 if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand (a) Vendor, or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, or before the Subprocessor first Processes Company Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the Company; and 4.4 provide to Company for review such copies of the Contracted Processors' agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Company may request from time to time.
Vendor shall ensure that each Subprocessor performs the obligations under sections 2.1, 3, 4, 6.1, 7.2, 8 and 10.1, as they apply to Processing of Company Personal Data carried out by that Subprocessor, as if it were a party to this Addendum in place of Vendor.
Annex 2 to this Addendum sets out certain information regarding the Vendor’s contracted Sub-processors.
6. Data Subject Rights
Taking into account the nature of the Processing, Vendor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfillment of the Company’s obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7. Personal Data Breach
Vendor shall notify Company without undue delay upon Vendor or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Vendor shall cooperate with the Company and take such reasonable commercial steps as are directed by the Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
Vendor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required of the Company by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or return of Company Personal Data
Subject to sections 9.2 and 9.3 Vendor shall promptly and in any event within 30 days of the date of cessation of any Services involving the Processing of Company Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Company Personal Data.
Subject to section 9.3, Company may in its absolute discretion by written notice to Vendor within 30 days of the Cessation Date require Vendor to (a) return a complete copy of all Company Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to Vendor; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor. Vendor shall comply with any such written request within 30 days of the Cessation Date.
Each Contracted Processor may retain Company Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Vendor shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
Vendor shall provide written certification to Company that it has fully complied with this section 9 within 30 of the Cessation Date.
10. Audit rights
Subject to sections 10.2 to 10.3, Vendor shall make available to the Company upon request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.
All expenses generated by audits of the Vendor conducted upon the specific request of the Company will be covered by the Company.
Information and audit rights of the Company only arise under section 10.1 to the extent that the Terms & Conditions does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3) (h) of the GDPR).
Company undertaking an audit shall give Vendor a 60 days notice of any audit or inspection to be conducted under section 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors' premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection: 4.1 to any individual unless he or she produces reasonable evidence of identity and authority; 4.2 outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company undertaking an audit has given notice to Vendor that this is the case before attendance outside those hours begins; 4.3 for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which: 4.3.1 Company undertaking an audit reasonably considers necessary because of genuine concerns as to Vendor's compliance with this Addendum; or 4.3.2 Company is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Company undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Vendor of the audit or inspection.
11. Restricted Transfers
Subject to section 11.3, the Company (as "data exporter") and each Contracted Processor, as appropriate, (as "data importer") hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from the Company to that Contracted Processor.
The Standard Contractual Clauses shall come into effect immediately on signing this Addendum.
Section 11.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
12. General Terms
Without prejudice to clause 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses: 1.1 the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Terms & Conditions with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and 1.2 this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Terms & Conditions.
Nothing in this Addendum reduces Vendor's obligations under the Terms & Conditions in relation to the protection of Personal Data or permits Vendor to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Terms & Conditions. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
Subject to section 12.2, with regard to the subject matter of this Addendum, in the event of inconsistency between the provisions of this Addendum and any other agreements between the parties, including the Terms & Conditions 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 Addendum, the provisions of this Addendum shall prevail.
Company may: 4.1 by at least 30 (thirty) calendar days' written notice to Vendor from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 11.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and 4.2 propose any other variations to this Addendum which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.
If Company gives notice under section 12.4.1: 5.1 Vendor shall promptly co-operate (and ensure that any affected Sub-processors promptly co-operate) to ensure that equivalent variations are made to any agreement put in place under section 5.4.3. The Vendor may terminate the Terms & Conditions and this Addendum in the event that it is unable to comply with, or agree to, the variations made by the Company. Where Subprocessors are not able to or are not willing to agree to changes, Vendor shall terminate any arrangement with the relevant Subprocessor; and 5.2 Company shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by Vendor to protect the Contracted Processors against additional risks associated with the variations made under section 12.4.1 and/or 12.5.1.
If Company gives notice under section 12.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company's notice as soon as is reasonably practicable.
Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
This Annex 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Company Personal Data
The subject matter and duration of the Processing of the Company Personal Data are set out in the Terms & Conditions and this Addendum.
The nature and purpose of the Processing of Company Personal Data
Vendor provides web push notification service and marketing automation technology and other related services, as described in the Terms & Conditions.
The purpose of the data processing under this DPA is the provision of the Services to the Company and the performance of Vendor’s obligations under the Terms & Conditions (including this DPA) or as otherwise agreed by the parties.
The types of Company Personal Data to be Processed
The Company Personal Data processed includes names, contact information, location, IP address, browser information and website URL.
From Company End Users:
The Company End User Data processed includes country, city, browser information, device information and website URL.
The categories of Data Subject to whom the Company Personal Data relates
Any individual accessing and/or using the Services through the Company's account ("Customers"); and any individual: (i) whose email address is included in the Company's account with the vendor; (ii) whose information is stored on or collected via the Services, or (iii) end users who engage or communicate via the Services.
The obligations and rights of Company and Company Affiliates
The obligations and rights of Company and Company Affiliates are set out in the Terms & Conditions and this Addendum.
ANNEX 2: LIST OF SUB-PROCESSORS
Sub-processors used by us when working as a processor:
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