All capitalized terms not defined in this DPA will have the meanings set forth in the Agreement. Terms used but not defined in this DPA, such as “controller,” “data subject,” “personal data,” “processing,” and “processor” will have the same meaning as set forth in the EU Data Protection Law.
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
“Agreement” means Tadpull’s Terms of Service, which govern the provision of the Services to Customer, as such terms may be updated by Tadpull from time to time.
“Customer Data” means any personal data that Tadpull processes on behalf of Customer as a processor in the course of providing Services, as more particularly described in this DPA.
“Data Protection Laws” means all data protection and privacy laws applicable to the processing of personal data under the Agreement, including, where applicable, EU Data Protection Law.
“EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
“EEA” means the European Economic Area, United Kingdom and Switzerland.
“Privacy Shield” means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017 respectively.
“Privacy Shield Principles” means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
“Services” means any product or service provided by Tadpull to Customer pursuant to the Agreement.
“Subprocessors” means the other processors that are used by Tadpull to process Personal Data.
(a) The parties agree that the DPA will replace any existing dataprocessing addendum the parties may have previously entered into in connection with the Services.
(b) Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA will prevail to the extent of that conflict.
(c) Any claims brought under or in connection with this DPA will be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
(d) Customer further agrees that any regulatory penalties incurred by Tadpull in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws will count toward and reduce Tadpull’s liability under the Agreement as if it were liability to the Customer under the Agreement.
(e) No one other than a party to this DPA, its successors, and permitted assignees will have any right to enforce any of its terms.
(f) This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
(a) This DPA applies where and only to the extent that Tadpull processes Customer Data that originates from the EEA or that is otherwise subject to EU Data Protection Law on behalf of Customer as a processor in the course of providing Services pursuant to the Agreement.
(b) This DPA will apply to the processing of Customer Data within the scope of this DPA from the Effective Date.
(a) Role of the Parties. As between Tadpull and Customer, Customer is controller of Customer Data, and Tadpull will process Customer Data only as a processor acting on behalf of Customers.
(b) Customer Processing of Customer Data. Customer agrees that: (i) it will comply with its obligations as a controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to Tadpull; and (ii) it has provided notice and obtained (or will obtain) all consents and rights necessary under Data Protection Laws for Tadpull to process Customer Data and provide the Services pursuant to the Agreement and this DPA.
(c) Tadpull Processing of Customer Data. Tadpull will process Customer Data only for the purposes described in this DPA and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to Tadpull in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) will require prior written agreement between Customer and Tadpull.
(d) Details of Data Processing
(i) Subject matter. The subject matter of the data processing under this DPA is the Customer Data.
(ii) Duration. As between Tadpull and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
(iii) Purpose. The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of Tadpull’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
(iv) Nature of the processing. Tadpull provides email messaging, analytics technology, and other related services, as described in the Agreement.
(v) Categories of data subjects. Any individual accessing and/or using the Services through the Customer's account (“Users”), and any individual: (A) whose email address is included in the Customer's Distribution List; (B) whose information is stored on or collected via the Services, or (C) to whom Users send emails or otherwise engage or communicate with via the Services (collectively, “End Users”).
(vi) Types of Customer Data.
(A) Customer and Users: identification and contact data (name, address, title, contact details, username, transaction history, site behavior); employment details (employer, job title, geographic location, area of responsibility).
(B) End Users: identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact. details, including email address), personal interests or preferences (including. purchase history, marketing preferences and publicly available social media. profile information), or IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data).
(e) Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that Tadpull will have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development, sales, and marketing. To the extent any such data is considered personal data under Data Protection Laws, Tadpull is the controller of such data and accordingly will process such data in accordance with the Tadpull Privacy Policy and Data Protection Laws.
(e) Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that Tadpull will have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development, sales, and marketing. To the extent any such data is considered personal data under Data Protection Laws, Tadpull is the controller of such data and accordingly will process such data in accordance with the Tadpull Privacy Policy and Data Protection Laws.
(f) Tracking Technologies. Customer acknowledges that in connection with the performance of the Services, Tadpull employs the use of cookies, unique identifiers, web beacons and similar tracking technologies (“Tracking Technologies”). Customer will maintain appropriate notice, consent, opt-in and opt-out mechanisms as are required by Data Protection Laws to enable Tadpull to deploy Tracking Technologies lawfully on, and collect data from, the devices of End Users (defined below) in accordance with and as described in the Tadpull Cookie Statement.
(a) Authorized Subprocessors. Customer agrees that Tadpull may engage Subprocessors to process Customer Data on Customer's behalf. The Subprocessors currently engaged by Tadpull and authorized by Customer are listed in Exhibit A to this DPA.
(b) Subprocessor Obligations. Tadpull will: (i) review Subprocessor documentation to ensure data protection terms that protect the Customer Data to the standard required by Data Protection Laws; and (ii) monitor its compliance with the obligations of this DPA and for any acts or omissions of the Subprocessor that cause Tadpull to breach any of its obligations under this DPA.
(a) Security Measures. Subject to the terms of the Agreement, Tadpull will implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data.
(b) Updates to Security Measures. Customer is responsible for reviewing the information made available by Tadpull relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that Tadpull may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
(c) Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
(a) Upon reasonable request, Tadpull will verify its compliance with this DPA, provided that Customer will not exercise this right more than once per year.
(a) Data center locations. Tadpull may transfer and process Customer Data anywhere in the world where Tadpull, its Affiliates, or its Subprocessors maintain data processing operations. Tadpull will at all times provide an adequate level of protection for the Customer Data collected, transferred, processed, or retained in accordance with the requirements of Data Protection Laws.
(b) Privacy Shield. To the extent that Tadpull processes any Customer Data protected by EU Data Protection Law under the Agreement and/or that originates from the EEA, to the United States, a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for personal data, the parties acknowledge that Tadpull will be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Customer Data by virtue of having self-certified its compliance with Privacy Shield. Tadpull agrees to protect such personal data in accordance with the requirements of the Privacy Shield Principles. If Tadpull is unable to comply with this requirement, Tadpull will inform Customer.
(c) Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8(b) will not apply if and to the extent that Tadpull adopts an alternative data export solution with Customer for the lawful transfer of personal data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism will apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which personal data is transferred).
(a) Confidentiality of Processing. Tadpull will ensure that any person who is authorized by Tadpull to process Customer Data (including its staff, agents and subcontractors) will be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
(b) Security Incident Response. Upon becoming aware of a Security Incident, Tadpull will notify Customer without undue delay and will provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
(a) Tadpull will: (i) provide an up-to-date list of the Subprocessors it has appointed upon written request from Customer; and (ii) notify Customer (for which email will suffice) if it adds Subprocessors at least 10 days prior to any such changes.
(b) Customer may object in writing to Tadpull’s appointment of a new Subprocessor within 5 calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties will discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Customer may suspend or terminate the Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).
(a) Upon termination or expiration of the Agreement, Tadpull will (at Customer's election) delete or return to Customer all Customer Data (including copies) in its possession or control, save that this requirement will not apply to the extent Tadpull is required by applicable law to retain some or all of the Customer Data, which Customer Data Tadpull will securely isolate and protect from any further processing, except to the extent required by applicable law.
(a) The Services provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Customer Data, which Customer may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Customer Data within the Services, Tadpull will (at Customer's expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of personal data under the Agreement. In the event that any such request is made directly to Tadpull, Tadpull will not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Tadpull is required to respond to such a request, Tadpull will promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
(b) If a law enforcement agency sends Tadpull a demand for Customer Data (for example, through a subpoena or court order), Tadpull will attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, Tadpull may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then Tadpull will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Tadpull is legally prohibited from doing so.
(c) To the extent Tadpull is required under EU Data Protection Law, Tadpull will (at Customer's expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
These Subprocessors set out below provide cloud hosting and storage services; content delivery and review services; assist in providing customer support; as well as incident tracking, response, diagnosis and resolution services.
