Splash Data Processing Agreement

Effective Date: Jan. 1, 2020

1. Definitions

For the purposes of this DPA:

"personal data", "special categories of data", "process/processing", "controller", "processor", "data subject" and "supervisory authority" shall have the same meaning as in Regulation (EU) 2016/679 of the European Parliament and the Council (also known as “EU General Data Protection Regulation” or “GDPR”).

"Subprocessor" means any processor engaged by Splash or by any other subprocessor of Splash, which agrees to receive from Splash, or from any other subprocessor of Splash, Client Personal Data intended for processing activities to be carried out on behalf of Client and in accordance with its instructions, the terms of this DPA and the terms of the written subcontract.

“CCPA” means the California Consumer Privacy Act of 2018, as amended, and any regulations promulgated thereunder.

“business,” “business purposes,” “commercial purposes,” “collects,” “collected,” “collection,” “consumer,” “de-identified,” “personal information,” “sell,” “selling,” “sale,” “sold,” “service provider” or “third party” shall have the same meaning as in the CCPA.

"Client Personal Data" means personal data and/or personal information, as applicable, provided to Splash in connection with the Services or in the course of Splash’s performance of the Services.

"Data Subject" means data subject and/or consumer, as applicable.

2. STATUS OF PARTIES; DETAILS OF THE PROCESSING ACTIVITIES

2.1  The parties agree that with respect to the provision of Services, as applicable: (a) as to processing of the personal information, Client is the business and Splash is the service provider; and (b) as to processing of the personal data, Client is the controller and Splash is the processor.

2.2  The details of the processing activities to be carried out by Splash on behalf of the Client under this DPA and in particular the special categories of personal data where applicable, are specified in Schedule 1, which forms an integral part of this DPA.

3. OBLIGATIONS OF SPLASH

3.1  Splash agrees:

(a)  to process Client Personal Data only: (i) on behalf of Client and/or the applicable business or controller and in accordance with Client's documented instructions unless otherwise required by European Union or European Member State law or state or Federal U.S. law to which Splash is subject; (ii) for the purpose of carrying out the Services or as otherwise instructed by Client; and(iii) in compliance with this DPA.

(b) that it shall not process the personal information other than on Client’s documented instructions in the Agreement, which include processing to detect data security incidents, protecting against fraudulent or illegal activity, creation of datasets of aggregate consumer information and deidentified information appointing subprocessors, and any other business purpose or operational purpose permissible under the CCPA of a service provider that does not cause Splash to lose its service provider status.

(c)  that it shall not (i) sell the personal information, (ii) retain, use or disclose the personal information for any purpose other than for the business purposes, including retaining, using, or disclosing the personal information for a commercial purpose other than providing the Services, or (iii) retain, use, or disclose the personal information outside of the business relationship between Client and Splash.

(d)  that if it is legally required to process Client Personal Data otherwise than as instructed by Client, it shall notify Client before such processing occurs, unless the law requiring such processing prohibits Splash from notifying Client on an important ground of public interest, in which case it shall notify Client as soon as that law permits it to do so.

(e)  that it has implemented and will maintain appropriate technical and organisational measures to protect Client Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access. Having regard to the state of the art and cost of their implementation, the Splash agrees that such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of Client Personal Data to be protected.

(f)  to take reasonable steps to ensure that its personnel who have access to the Client Personal Data have committed themselves to confidentiality or are under appropriate statutory obligation of confidentiality.

(g)  that it will, as required by applicable law, notify Client about: (i) any instruction which, in its opinion, infringes applicable law; and (ii)          any actual, confirmed security breach, unauthorized access, misappropriation, loss, damage or other compromise of the security, confidentiality, or integrity of Client Personal Data processed by Splash or a Subprocessor ("Security Breach").

(h)  that within a reasonable time following discovery of any Security Breach, it shall: (i) take reasonable steps to mitigate the harm to Data Subjects and prevent any further Security Breach; and (ii) provide Client with cooperation and assistance in relation to any notifications that Client is required to make as a result of the Security Breach.

(i)  to assist Client in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to Splash.

(j)  to inform a Data Subject making a request that it should submit the request directly to Client.

(k)  to assist Client in complying with a request from a Data Subject by providing functionality through the Services for Client to fulfil the request itself.

(l)  to make available to Client all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by Client or another auditor mandated by Client, upon terms mutually agreeable to the parties.

4. SUBPROCESSORS

Splash maintains a list of Subprocessors posted at the following URL: https://splashthat.com/terms/subprocessors . The URL also includes a link where Client can subscribe for updates on the Splash Subprocessors and if subscribed, Client will receive email notification about Splash Subprocessor changes. If Client does not object to the engagement of a new Subprocessor within ten (10) days of the aforesaid notice, such new Subprocessor will be deemed to have been accepted by Client.

5. ALLOCATION OF COSTS

Each party shall perform its obligations under this DPA at its own cost.

6. RETURN OR DELETION OF CLIENT PERSONAL DATA

Splash will enable Client to delete any Client Personal Data through the functionalities of Services at any time during the term of the Agreement. Alternatively, upon written request of Client, Splash will securely destroy all Client Personal Data for Client. Notwithstanding the foregoing, Splash may prevent Client’s deletion of, or decline to return or destroy any Client Personal Data, if applicable law prevents Splash or Subprocessor from doing so.

7.  INTERNATIONAL DATA TRANSFERS

Any transfer of personal data made pursuant to this DPA from the European Economic Area or the United Kingdom to any countries which do not ensure an adequate level of data protection within the meaning of the laws and regulations of these countries shall, to the extent such transfer is subject to such laws and regulations, be undertaken by Splash in accordance with the Swiss-U.S. and EU-U.S. Privacy Shield Framework and Principles issued by the U.S. Department of Commerce, both available at https://www.privacyshield.gov/EU-US-Framework.

8. Miscellaneous

8.1  The limitations and exclusions of liability set forth in the Services Agreement shall apply to this DPA.

8.2  In the event of inconsistencies between the provisions of this DPA and other agreements between the parties, the provisions of this DPA shall prevail.  In cases of doubt, this DPA shall prevail, in particular, where it cannot be clearly established whether a clause relates to a party's data protection obligations.

8.3  Should any provision or condition of this DPA be held or declared invalid, unlawful or unenforceable by a competent authority or court, then the remainder of this DPA shall remain valid.  Such an invalidity, unlawfulness or unenforceability shall have no effect on the other provisions and conditions of this DPA to the maximum extent permitted by law.  The provision or condition affected shall be construed either: (a) to be amended in such a way that ensures its validity, lawfulness and enforceability while preserving the Parties' intentions, or if that is not possible, (ii) as if the invalid, unlawful or unenforceable part had never been contained in this DPA.

8.4  Any amendments to this DPA shall only be effective in they are made in writing duly signed by authorised representatives of the parties hereto.

9. Limitation of Liability

Schedule 1

Details of the processing activities

This Schedule forms part of the DPA.

Data subjects 

The personal data concerns the following categories of data subjects (please specify):

Personal Data relevant to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

• Prospects, customers, business partners and Suppliers of Controller (who are natural persons)

• Employees or contact persons of Controller’s prospects, customers, business partners and Suppliers

• Employees, consultants, agents, advisors, freelancers of Controller (who are natural persons)

• Controller’s users authorized by Controller to use the Services

• Attendees of Controller’s events

Categories of data

The personal data concerns the following categories of data (please specify):

Personal Data relevant to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

• First and last name

• Title

• Position

• Employer

• Contact information (company, email, phone, physical business address)

• ID data

• Device data

• Professional life data

• Personal life data

• Connection data

• Localization data

EXHIBIT B

Standard Contractual Clauses

Special categories of data (if appropriate)

The personal data concerns the following special categories of data (please specify):

None.  The personal data processed will not include sensitive personally identifiable information, including information about racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, sex life, government issued identification numbers, health or medical records, financial information and criminal records, or any payment information. 

Processing operations

The personal data will be subject to the following basic processing activities (please specify):

Processing to perform the Services pursuant to the Agreement.

Duration

The personal data will be processed by Splash for the duration of the Services.

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.

The Clauses become effective at the same time as the Addendum. If you are accessing the Services on behalf of your employer, you represent and warrant that you have the authority to agree to these terms on its behalf and the right to bind your employer thereto. If either you or your employer do not unconditionally agree to the Clauses, you have no right to use Splash’s Services and must navigate away from all Splash webpages and applications.

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 Controller;

(c) 'the data importer' means Processor;

(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

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 Clauses¹. 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 exporter is established.

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.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

Data exporter

The data exporter is the Controller.

Data importer

The data importer is Splash.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Personal Data related to the Services, the extent of which is determined and controlled by Controller in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

• Prospects, customers, business partners and Suppliers of Controller (who are natural persons)

• Employees or contact persons of Controller’s prospects, customers, business partners and Suppliers

• Employees, consultants, agents, advisors, freelancers of Controller (who are natural persons)

• Controller’s users authorized by Controller to use the Services

• Attendees of Controller’s events

Categories of data

The personal data transferred concern the following categories of data (please specify):

Personal Data related to the Services, the extent of which is determined and controlled by Controller in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

• First and last name

• Title

• Position

• Employer

• Contact information (company, email, phone, physical business address)

• ID data

• Device data

• Professional life data

• Personal life data

• Connection data

• Localization data

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):

Processing to perform the Services pursuant to the Terms of Service, namely but not limited to processing activities to facilitate events.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Data Importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data contained in Customer Data. Data Importer will not materially decrease the overall security of the Services during a subscription term.

EXHIBIT C

Authorized Subcontractors

Controller acknowledges and agrees that Data Importer may engage affiliates and third parties as Sub-Contractors (also referred to as Sub-processors) to process the Personal Data.  Data Importer shall provide on its website a list of Sub-processors that are currently retained by Data Importer to carry out processing activities.  The Data Importer will update the list once per month, thereby notifying Controllers through its website of any changes and giving Controllers the opportunity to object to Sub-processors or changes to the list of Sub-processors.  Notwithstanding the other provisions of this section, Data Importer may add or replace a Sub-processor immediately and without notice if it is necessary for business continuity and/or recovery in case of emergency, except as expressly prohibited by requisite laws and statutes.  Sub-processors shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Personal Data.

1. This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision.