This EU Data Processing Addendum (“Addendum”) supplements the Master Services Agreement or other written or electronic agreement entered into by and between you, the entity you represent, and your affiliates (“Controller” or “you”) and One Clipboard, Inc. d/b/a Splash (“Processor”) (the “Agreement”). Controller enters into this Addendum on behalf of itself and, to the extent required under applicable Data Protection Laws (defined below), in the name and on behalf of its Affiliates (defined below), if any. This Addendum incorporates the terms of the Agreement, and any terms not defined in this Addendum shall have the meaning set forth in the Agreement. In the event of a conflict between the terms and conditions of this Addendum and the Agreement, the terms and conditions of this Addendum shall supersede and control.
PLEASE READ THIS ADDENDUM CAREFULLY. THIS ADDENDUM IS A BINDING CONTRACT FOR PROCESSING OF PERSONAL DATA THROUGH THE USE OF PROCESSOR. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THIS ADDENDUM DO NOT ACCESS OR USE PROCESSOR’S SERVICES FOR THE PROCESSING OF PERSONAL DATA. BY ACCESSING OR USING PROCESSOR’S SERVICES YOU ARE ACCEPTING THE TERMS OF THIS ADDENDUM AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT AND ITS AFFILIATES).
“Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest; (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party; or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
“Privacy Shield Principles” means 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.
“Process” or “Processing” means any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
“Standard Contractual Clauses” means the terms and conditions available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010D0087&from=EN, or any updated version thereof, which are hereby incorporated into this Addendum.
The rights and obligations of the Controller with respect to this Processing are described herein. Controller shall, in its use of the Services, at all times Process Personal Data, and provide Instructions for the Processing of Personal Data, in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”)) and the CCPA (together, “Data Protection Laws”)). Controller shall ensure that its Instructions comply with all laws, rules and regulations applicable in relation to the Personal Data, and that the Processing of Personal Data in accordance with Controller’s Instructions will not cause Processor to be in breach of the Data Protection Laws. Controller is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Processor by or on behalf of Controller; (ii) the means by which Controller acquired any such Personal Data; and (iii) the Instructions it provides to Processor regarding the Processing of such Personal Data. Controller shall not provide or make available to Processor any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Processor from all claims and losses in connection therewith. This Addendum does not apply to Personal Data for which Processor is a controller.
Processor shall not Process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A; (ii) in a manner inconsistent with the terms and conditions set forth in this Addendum or any other documented Instructions provided by Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest; or (iii) in violation of the GDPR. Controller hereby instructs Processor to Process Personal Data in accordance with the foregoing and as part of any Processing initiated by Controller in its use of the Services.
Following completion of the Services, at Controller’s choice, Processor shall return or delete the Personal Data, unless further storage of Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Processor shall take measures to block such Personal Data from any further Processing (except to the extent necessary for its continued hosting or Processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Processor to Controller only upon Controller’s request.
CCPA. The parties acknowledge and agree that Processor is a service provider for the purposes of the CCPA and may be receiving personal information from Controller pursuant to the Agreement for a business purpose. Processor shall not sell any such personal information. Processor shall not retain, use or disclose any personal information provided by Controller pursuant to this Agreement except as necessary for the specific purpose of performing the services for Controller pursuant to the Agreement, or as otherwise set forth in the Agreement, or as explicitly authorized by Controller in writing, or as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell”, as used in this Section 2.5, are as defined in Section 1798.140 of the CCPA. Processor certifies that it understands the rules, restrictions, requirements and definitions of the CCPA.
Processor shall ensure that all Authorized Employees are made aware of the confidential nature of Personal Data and have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their engagement with Processor, any Personal Data except in accordance with their obligations in connection with the Services.
Controller acknowledges and agrees that Processor may (i) engage its affiliates and the Authorized Sub-Processors described further in Section 4.2 to this Addendum to access and Process Personal Data in connection with the Services; and (ii) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the Processing of Personal Data. By way of this Addendum, Controller provides general written authorization to Processor to engage sub-processors as necessary to perform the Services.
A list of Processor’s current Authorized Sub-Processors (the “List”) will be maintained and made available to Controller at the following URL: https://splashthat.com/terms/subprocessors, or through another means made available to Controller. Such List may be updated by Processor from time to time. The URL also includes a link where Controller can subscribe for updates on the Authorized Sub-Processors and if subscribed, Controller will receive email notification about Authorized Sub-Processor changes. At least ten (10) days before enabling any third party other than Authorized Sub-Processors to access or participate in the Processing of Personal Data, Processor will add such third party to the List. Controller may reasonably object to such an engagement on legitimate grounds by informing Processor in writing within ten (10) days of receipt of the aforementioned notice by Controller. Controller acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Processor from offering the Services to Controller.
If Controller reasonably objects to an engagement in accordance with Section 4.2, and Processor cannot provide a commercially reasonable alternative within a reasonable period of time, Processor may terminate this Addendum. Termination shall not relieve Controller of any fees owed to Processor under the Agreement.
Processor will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Processor under this Addendum with respect to the protection of Personal Data. In case an Authorized Sub-Processors fails to fulfill its data protection obligations under such written agreement with Processor, Processor will remain liable to Controller for the performance of the Authorized Sub-Processor’s obligations under such agreement
If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Controller’s prior written consent to the subcontracting by Processor of the processing of Personal Data if such consent is required under the Standard Contractual Clauses; and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Processor to Controller pursuant to Clause 5(j) of the Standard Contractual Clauses may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Processor beforehand, and that such copies will be provided by the Processor only upon request by Controller.
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, Processor shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Processing Personal Data.
The parties agree that Processor may transfer Personal Data processed under this Addendum outside the European Economic Area (“EEA”) or Switzerland as necessary to provide the Services. If Processor transfers Personal Data protected under this Addendum to a jurisdiction for which the European Commission has not issued an adequacy decision, Processor will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
Where required, any transfer of Personal Data made subject to this Addendum to any countries which do not ensure an adequate level of data protection shall be undertaken by Processor through one of the following mechanisms: (i) in accordance with the Privacy Shield Principles; or (ii) the Standard Contractual Clauses.
If transfers are made pursuant to 6.2(a), Processor self-certifies to, and complies with, the Swiss-U.S. and EU-U.S. Privacy Shield Frameworks, as administered by the U.S. Department of Commerce, and shall maintain such self-certification and compliance with respect to the Processing of Personal Data transferred from member states of the EEA or Switzerland to any countries which do not ensure an adequate level of data protection within the meaning of the laws and regulations of the foregoing countries for the duration of the Addendum.
Processor shall, to the extent permitted by law, notify Controller upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Processor receives a Data Subject Request in relation to Controller’s data, Processor will advise the Data Subject to submit their request to Controller and Controller will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Controller is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of Processing, or withdrawal of consent to Processing of any Personal Data are communicated to Processor, and for ensuring that a record of consent to Processing is maintained with respect to each Data Subject
Processor shall, at the request of the Controller, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Controller in complying with Controller’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Controller is itself unable to respond without Processor’s assistance; and (ii) Processor is able to do so in accordance with all applicable laws, rules, and regulations. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance where necessary for Controller to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Controller does not otherwise have access to the relevant information. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance with respect to Controller’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
Processor shall maintain records sufficient to demonstrate its compliance with its obligations under this Addendum, and retain such records for a period of three (3) years after the termination of the Agreement. Controller shall, with reasonable notice to Processor, have the right to review, audit and copy such records at Processor’s offices during regular business hours.
Upon Controller’s request, Processor shall, no more than once per calendar year, either (i) make available for Controller’s review copies of certifications or reports demonstrating Processor’s compliance with prevailing data security standards applicable to the Processing of Controller’s Personal Data; or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Controller or its authorized representative, upon reasonable notice and at a mutually agreeable date and time, to conduct an audit or inspection of Processor’s data security infrastructure and procedures that is sufficient to demonstrate Processor’s compliance with its obligations under this Addendum, provided that Controller shall provide reasonable prior notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Processor’s business. Controller shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Processor for any time expended for on-site audits. If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with this Section 8.4.
In the event of a Personal Data Breach, Processor shall, without undue delay, inform Controller of the Personal Data Breach and take such steps as Processor in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Processor’s reasonable control).
In the event of a Personal Data Breach, Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance necessary for Controller to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority; and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
The obligations described in Sections 8.5 and 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Controller. Processor’s obligation to report or respond to a Personal Data Breach under Sections 8.5 and 8.6 will not be construed as an acknowledgement by Processor of any fault or liability with respect to the Personal Data Breach.
The total liability of each of Controller and Processor (and their respective employees, directors, officers, affiliates, successors, and assigns), arising out of or related to this Addendum, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement.
The parties acknowledge and agree that to the extent Processor processes Personal Data in connection with the Agreement to: (i) monitor, prevent and detect fraud, and to prevent harm to Controller, Processor and the Processor’s affiliates, and to third parties; (ii) comply with legal or regulatory obligations applicable to the processing and retention of Personal Data to which Processor is subject; (iii) analyze, develop and improve Processor’s products and services; or (iv) provide the Processor products and services to Processor users, Processor is acting as a data controller with respect to the Processing of such Personal Data it receives from or through Controller.
Data Exporter: The data exporter is the entity identified as “Controller” in the Addendum.
Data Importer: The data importer is One Clipboard, Inc. d/b/a Splash.
Nature and Purpose of Processing: Processor will process Personal Data to perform the Services pursuant to the Agreement.
Duration of Processing: The Personal Data will be processed by Processor for the duration of the Services.
Categories of Data Subjects: Processor will process Personal Data relevant 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:
Type of Personal Data: Processor will process Personal Data relevant 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:
Processor will not process any special categories of data (as defined by Data Protection Laws). 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.
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 has implemented and will maintain appropriate technical and organisational measures to protect 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, Processor agrees that such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of Personal Data to be protected. Processor may update or modify such security measures form time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Services.
