Data Processing Addendum
This Data Processing Addendum (“DPA”) is incorporated into and forms part of the Master Services Agreement (the “Agreement”) entered into by and between the Customer and Intempt Technologies LLC. (“Intempt”) (collectively the “Parties”), pursuant to which Customer has subscribed to Intempt’s Application Services as defined in the applicable Agreement. The purpose of this DPA is to reflect the Parties’ agreement regarding Processing Personal Data in accordance with the Data Protection Legislation.
This DPA does not replace or supersede any agreement or addendum relating to the processing of personal data negotiated by Customer and referenced in the Agreement or, if applicable, an order governed by the Agreement (an “Ordering Document”) and any such individually negotiated agreement or addendum, shall apply instead of this DPA. In the course of providing the Application Services to Customer pursuant to the Agreement, Intempt may Process Personal Data on behalf of Customer. Intempt agrees to comply with the following provisions with respect to any Personal Data submitted by or for Customer to the Application Services or collected and processed by or for Customer through the Application Services. Any capitalized but undefined terms herein shall have the meaning set forth in the Agreement.
“Data Protection Legislation” means the 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 on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”), and all other applicable laws relating to the processing of personal data and privacy that may exist in any relevant jurisdiction.
“Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with a party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
“Data Controller,” “Data Processor,” “Data Subject,” “Personal Data,” “Processing,” and “Appropriate Technical and Organisational Measures” shall be interpreted in accordance with applicable Data Protection Legislation;
“Subprocessor” means any person (including any third party and any Intempt Affiliate, but excluding an employee of Intempt or any of its subcontractors) appointed by or on behalf of Intempt or any Intempt Affiliate to process personal data on behalf of Customer and/or Customer Affiliate in connection with the Agreement.
Data Protection Terms
Relationship of the Parties. The Parties agree that Customer is the Data Controller and that Intempt is its Data Processor in relation to Personal Data that is Processed in the course of providing the Application Services. Customer shall comply at all times with Data Protection Legislation in respect of all Personal Data it provides to Intempt pursuant to the Agreement and in connection with its use of the Application Services.
Customer Affiliates. If a Customer Affiliate has executed an Ordering Document but is not itself a party to the Agreement, this DPA is an addendum to that Ordering Document. If a Customer Affiliate is neither a party to an Ordering Document nor the Agreement, this DPA does not apply to that Affiliate. Such an Affiliate should request that the Customer execute a data processing agreement for the benefit of that entity.
Purpose, Duration, and Nature of Processing. The subject matter of the Processing covered by this DPA is the license to access and use the Application Services ordered by Customer either through Intempt’s website or through an Ordering Document and provided by Intempt to Customer via www.intempt.com, or as additionally described in the Agreement, Ordering Document, or this DPA. The Processing will be carried out until the term listed in the applicable Ordering Document ceases. Details on the nature of the Processing are set out in Annex 1 to this DPA.
Processing Requirements. In respect of Personal Data Processed in the course of providing the Application Services, Intempt:
- Shall Process Personal Data: (i) in accordance with the documented instructions from Customer as set out in this DPA, the Agreement, or (if applicable) the Ordering Document; (ii) shared or transmitted by Customer in connection with Customer’s use of the Application Services; and (iii) to comply with other written, reasonable instructions provided by Customer where such instructions are consistent with the terms of this DPA, the Agreement, and Data Protection Legislation. If Intempt is required to Process Personal Data for any other purpose provided by the applicable law to which it is subject, Intempt will inform Customer of such requirement prior to the Processing unless that law prohibits this on important grounds of public interest;
- Shall notify Customer without undue delay if, in Intempt’s opinion, an instruction for the Processing of Personal Data provided by Customer through the Application Services infringes applicable Data Protection Legislation;
- Shall implement and maintain Appropriate Technical and Organisational Measures designed to protect Personal Data against unauthorized or unlawful Processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of the personal data and having regard to the nature of the Personal Data which is to be protected;May hire and has hired other companies to provide limited services on its behalf, provided that Intempt complies with the provisions of this clause. Customer hereby confirms its general authorization for Intempt’s use Subprocessors. Intempt’s current Subprocessors list is available to Customer upon written request. The Subprocessors will be permitted to Process Personal Data only to deliver the services Intempt has retained them to provide, and they shall be prohibited from using Personal Data for any other purpose. Intempt remains responsible for its Subprocessors’ compliance with the obligations of this DPA. Any Subprocessors to whom Intempt transfers Personal Data will have entered into written agreements with Intempt requiring that the Subprocessor abide by terms consistent with the requirements of this DPA. If Customer requires notification of any updates to the list of Subprocessors, Customer can request such notification by emailing email@example.com. Intempt will update this list within thirty (30) days of any such notification if Customer does not legitimately object to such changes within that time frame. Legitimate objections must contain reasonable and documented grounds relating to a Subprocessor’s non-compliance with applicable Data Protection Legislation. If, in Intempt’s reasonable opinion, such objections are legitimate, the Customer may, by providing written notice to Intempt, terminate the Agreement. Customer acknowledges and agrees that (a) Intempt’s Affiliates may be retained as Subprocessors through written agreement with Intempt and (b) Intempt and Intempt Affiliates respectively may engage third party subcontractors, pursuant to this clause 4, in connection with the provision of the Application Services;Shall ensure that all Intempt personnel required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations sets out in this clause and applicable Data Protection Legislation; Shall, at Customer’s written request, assist the Customer by implementing appropriate and reasonable technical and organisational measures to assist with the Customer’s obligation to respond to requests from Data Subjects under Data Protection Legislation (including requests for information relating to the processing, and requests relating to access, rectification, erasure or portability of Personal Data) provided that Intempt reserves the right to reimbursement from Customer for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance; Shall take reasonable steps at the Customer’s request to assist Customer in meeting Customer’s obligations under Article 32 to 36 of the GDPR taking into account the nature of the processing under this DPA; provided, however, that Intempt reserves the right to reimbursement from Customer for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance; Shall, at the end of the applicable term of the Application Services and upon Customer’s written request, securely destroy or return such Personal Data to Customer; Agrees, where Intempt Processes or permits any Subprocessor to Process Personal Data in any country not deemed to provide an adequate level of protection of Personal Data by Data Protection Legislation, to transfer such Personal Data across international borders as follows: (i) for the European Union or the European Economic Area in compliance with the Standard Contractual Clauses which shall be incorporated in full by reference and form an integral part of this DPA, and which are set forth in Annex 2 below, provided that in the event of a conflict between the DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall control, (ii) for the United Kingdom, in compliance with the Standard Contractual Clauses, which the Parties agree shall apply to such transfer; Upon written request, shall either provide information regarding its compliance in the form of third-party certifications and audits reports on its security, privacy and architecture or respond with industry-standard written audit questionnaires, provided that the purpose of such audit is to verify that Intempt is Processing Personal Data in accordance with its obligations under the DPA. Such audit may be carried out by Customer or an inspection body composed of independent members and in possession of required professional certificates or qualifications that bind said body to a duty of confidentiality. For the avoidance of doubt no access to any part of Intempt’s information technology systems, data hosting sites or centers, or its infrastructure will be permitted. The Parties agree that any audit described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed pursuant to this provision; Shall notify Customer without undue delay if Intempt becomes aware of a breach of its security leading to any accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, or access to Personal Data that is Processed by Intempt in the course of providing the Application Services (“Incident”) under the Agreement and provide Customer (as soon as possible thereafter) with a description of the Incident as well as periodic updates to information about the Incident, including its impact on Personal Data. Intempt shall additionally take action to investigate the Incident and reasonably prevent or mitigate the effects of the Incident; and Shall provide relevant information reasonably requested by Customer to demonstrate compliance with the obligations set out in this DPA.
Limitation of Liability. This DPA shall be subject to the limitations of liability agreed between Customer and Intempt in the Agreement and such limitation shall apply in aggregate for all claims under the Agreement and DPA.
DPA Annex 1
Details of the Data Processing
Intempt shall process information to provide the Application Services pursuant to the Agreement and the DPA. Intempt shall process information sent by Customer’s end users identified through Customer’s implementation of the Application Services. As an example, in a standard programmatic implementation, to utilize the Application Services, Customer may allow the following information to be sent by default as “default properties”:
Types of Personal Data
- Time zone
- Browser Version Device
- Current URL Initial Referrer
- Initial Referring Domain Operating System Intempt Library Referrer
- Referring Domain Screen Height Screen Width Search Engine Search Keyword
- UTM Parameters (ie. any UTM tags associated with the link a customer clicked to arrive at the domain) Last Seen (the last time a property was set or updated).
Categories of Data Subjects
Users of the Customers web and mobile applications.
The provision of Application Services by Intempt to Customer.
DPA Annex 2
Standard Contractual Clauses (Processors)
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.
The Parties (Customer as Data Exporter and Intempt as Data Importer): 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 identified in either the Agreement or Annex 1 to the DPA.
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 the controller who transfers the personal data;
(c) ‘the data importer’ means the processor, identified above, who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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.
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
- 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.
- 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.
- The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
- 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.
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 organizational 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, unauthorized 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 sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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).
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 organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
- 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;
- any accidental or unauthorized access; and
- any request received directly from the data subjects without responding to that request unless it has been otherwise authorized 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 an 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 sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
- 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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
- 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 sub-processor 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 sub-processor of its obligations in order to avoid its own liabilities.
- 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
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.
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.
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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
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 Clauses.
- 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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
- The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub-processing 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.
- The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and be 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.
Obligation after the termination of personal data processing services
- The Parties agree that on the termination of the provision of data processing services, the data importer and the sub-processor 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.
- The data importer and the sub-processor 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
The data exporter is (please specify briefly your activities relevant to the transfer): The data exporter is the entity identified as “Customer” or “Controller” in the Agreement.
The data importer is (please specify briefly activities relevant to the transfer):
The data importer is Intempt, Inc. (“Intempt”), a company providing hosted business software applications that processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.
The personal data transferred concern the following categories of data subjects (please specify):
The personal data transferred concern the categories of data subjects defined in Annex 1 to the DPA.
Categories of data
The personal data transferred concern the following categories of data (please specify):
The personal data transferred concern the categories of data defined in Annex 1 to the DPA.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The personal data transferred concern the special categories of data defined in Annex 1 to the DPA.
The personal data transferred will be subject to the following basic processing activities (please specify):
The personal data transferred will be subject to the basic processing activities defined in Annex 1 to the DPA.
Appendix 2 to the Standard Contractual Clauses
Notices. For the Data Exporter, any notices shall be sent to the email address of the individual(s) with administrative rights to Data Exporter’s account with access to Data Importer’s services; Data Exporter may request this contact information to be updated for the purpose of these
Clauses by emailing firstname.lastname@example.org. For the Data Importer, any notices shall be sent to:
Intempt Technologies LLC. 1101 W 34th St, #595 Austin, TX 78705
Appendix 3 List of Sub-processors
A list of Sub-processors currently authorized by Intempt to process Customer Data as set out