Data Processing Agreement

PDF Version: Data Processing Agreement

Data Processing Agreement

BETWEEN:

The company who will electronically sign this Data Processing Agreement (hereinafter to be referred to as: the “Data Controller”),

AND

Hertza, L.L.C., DBA ZeroBounce, a Nevada limited liability company, having its principal place of business at 10 E. Yanonali St., Santa Barbara, California 93101 (hereinafter to be referred to as: the “Data Processor”).

HEREBY AGREE AS FOLLOWS:

1. Subject matter of this Data Processing Agreement

1.1

This Data Processing Agreement applies exclusively to the processing of personal data that is subject to EU Data Protection Law in the scope of the Terms and Conditions of Use Agreement of even date hereof between the parties for the provision of the ZeroBounce services (“Services”) (hereinafter to be referred to as: the “Service Agreement”).

1.2

The term EU Data Protection Law shall mean 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 and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

1.3

Terms such as “Processing”, “Personal Data”, “Data Controller” and “Processor” shall have the meaning ascribed to them in the EU Data Protection Law.

1.4

Insofar as the Data Processor will be processing Personal Data subject to EU Data Protection Law on behalf of the Data Controller in the course of the performance of the Service Agreement with the Data Controller the terms of this Data Processing Agreement shall apply. The categories of Personal Data to be processed includes: first name; last name; gender; city; state; country; Internet Protocol (IP) Address information; and email addresses. The types of data subjects who information will be processed are individuals. The purposes for which the personal data will be processed includes: validation of email lists for deliverability; and removal of known email complainers, abusers and spam traps from email address lists.

2. The Data Controller and the Data Processor

2.1

The Data Controller will determine the scope, purposes, and manner by which the Personal Data may be accessed or processed by the Data Processor. The Data Processor will process the Personal Data only as set forth in Data Controller’s written instructions.

2.2

The Data Processor will only process the Personal Data on documented instructions of the Data Controller in such manner as – and to the extent that – this is appropriate for the provision of the Services, except as required to comply with a legal obligation to which the Data Processor is subject. In such a case, the Data Processor shall inform the Data Controller of that legal obligation before processing, unless that law explicitly prohibits the furnishing of such information to the Data Controller. The Data Processor shall never process the Personal Data in a manner inconsistent with the Data Controller’s documented instructions. The Data Processor shall immediately inform the Data Controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions.

2.3

The Parties have entered into a Service Agreement in order to benefit from the expertise of the Processor in securing and processing the Personal Data for the purposes set out in Section 1.4. The Data Processor shall be allowed to exercise its own discretion in the selection and use of such means as it considers necessary to pursue those purposes, subject to the requirements of this Data Processing Agreement.

2.4

Data Controller warrants that it has all necessary rights to provide the Personal Data to Data Processor for the Processing to be performed in relation to the Services. To the extent required by Applicable Data Protection Law, Data Controller is responsible for ensuring that any necessary data subject consents to this Processing are obtained, and for ensuring that a record of such consents is maintained. Should such a consent be revoked by the data subject, Data Controller is responsible for communicating the fact of such revocation to the Data Processor, and Data Processor remains responsible for implementing any Data Controller instruction with respect to the further processing of that Personal Data.

3. Confidentiality

3.1

Without prejudice to any existing contractual arrangements between the Parties, the Data Processor shall treat all Personal Data as strictly confidential and it shall inform all its employees, agents and/or approved sub-processors engaged in processing the Personal Data of the confidential nature of the Personal Data. The Data Processor shall ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.

4. Security

4.1

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, without prejudice to any other security standards agreed upon by the Parties, the Data Controller and Data Processor shall implement appropriate technical and organizational measures to ensure a level of security of the processing of Personal Data appropriate to the risk. These measures shall include as appropriate:

(a)

measures to ensure that the Personal Data can be accessed only by authorized personnel for the purposes set forth in Section 1.4 of this Data Processing Agreement;

(b)

in assessing the appropriate level of security account shall be taken in particular of all the risks that are presented by processing, for example from accidental or unlawful destruction, loss, or alteration, unauthorized or unlawful storage, processing, access or disclosure of Personal Data;

(c)

the pseudonymization and encryption of personal data;

(d)

the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(e)

the ability to restore the availability and access to personal data in a timely manner in the event of physical or technical incident;

(f)

a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of Personal Data;

(g)

measures to identify vulnerabilities with regard to the processing of Personal Data in systems used to provide services to the Data Controller; or

(h)

ZeroBounce takes the following security measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access: * ZeroBounce is an active participant in the EU-US Privacy Shield Program; * ZeroBounce has restricted access to two personnel members with the ability to directly access files containing personal information on ZeroBounce servers; * The ZeroBounce support team does not have access to CloudFlare; * All data uploads and downloads sent between ZeroBounce and its customers flow through third party CloudFlare’s servers; * CloudFlare is an active participant in the EU-US Privacy Shield Program; * CloudFlare maintains its own security protections to block threats and limit abusive bots and crawlers. See https://support.cloudflare.com/hc/en-us/articles/205177068-Step-1-How-does-Cloudflare-work- * Any information that is uploaded by a ZeroBounce customer to ZeroBounce.net is transmitted via SSL through CloudFlare, and all files are stored in an encrypted file using a standard algorithm for protection of stored data defined by IEEE P1619 on ZeroBounce servers; and * All files are sent to ZeroBounce customers encrypted, with a password via a separate email

4.2

The Data Processor shall at all times have in place an appropriate written security policy with respect to the processing of Personal Data, outlining in any case the measures set forth in Article 4.1.

4.3

At the request of the Data Controller, the Data Processor, shall demonstrate the measures it has taken pursuant to this Article 4 shall allow the Data Controller to audit and test such measures. The Data Controller shall be entitled on giving at least 14 days’ notice to the Data Processor to carry out, or have carried out by a third party who has entered into a confidentiality agreement with the Data Processor, audits of the Data Processor’s premises and operations as these relate to the Personal Data. The Data Processor shall cooperate with such audits carried out by or on behalf of the Data Controller and shall grant the Data Controller’s auditors reasonable access to any premises and devices involved with the Processing of the Personal Data. The Data Processor shall provide the Data Controller and/or the Data Controller’s auditors with access to any information relating to the Processing of the Personal Data as may be reasonably required by the Data Controller to ascertain the Data Processor’s compliance with this Data Processing Agreement.

5. Improvements to Security

5.1

The Parties acknowledge that security requirements are constantly changing and that effective security requires frequent evaluation and regular improvements of outdated security measures. The Data Processor will therefore evaluate the measures as implemented in accordance with Article 4 on an on-going basis and will tighten, supplement and improve these measures in order to maintain compliance with the requirements set out in Article 4. The Parties will negotiate in good faith the cost, if any, to implement material changes required by specific updated security requirements set forth in applicable data protection law or by data protection authorities of competent jurisdiction.

5.2

Where an amendment to the Service Agreement is necessary in order to execute a Data Controller instruction to the Data Processor to improve security measures as may be required by changes in applicable data protection law from time to time, the Parties shall negotiate an amendment to the Service Agreement in good faith.

6. Data Transfers

6.1

The Data Processor shall immediately notify the Data Controller of any (planned) permanent or temporary transfers of Personal Data to a country outside of the European Economic Area without an adequate level of protection and shall only perform such a (planned) transfer after obtaining authorization from the Data Controller, which may be refused at its own discretion. The Data Controller grants its consent to transfers to the United States.

6.2

To the extent that the Data Controller or the Data Processor are relying on a specific statutory mechanism to normalize international data transfers that is subsequently modified, revoke, or held in a court of competent jurisdiction to be invalid, the Data Controller and the Data Processor agree to cooperate in good faith to promptly terminate the transfer or to pursue a suitable alternate mechanism that can lawfully support the transfer.

7. Information Obligations and Incident Management

7.1

When the Data Processor becomes aware of an incident that impacts the Processing of the Personal Data that is the subject of the Service Agreement, it shall promptly notify the Data Controller about the incident, shall at all times cooperate with the Data Controller, and shall follow the Data Controller’s instructions with regard to such incidents, in order to enable the Data Controller to perform a thorough investigation into the incident, to formulate a correct response, and to take suitable further steps in respect of the incident.

7.2

The term “incident” used in Article 7.1 shall be understood to mean in any case:

(a)

a complaint or a request with respect to the exercise of a data subject’s rights under EU Data Protection Law;

(b)

an investigation into or seizure of the Personal Data by government officials, or a specific indication that such an investigation or seizure is imminent;

(c)

any unauthorized or accidental access, processing, deletion, loss or any form of unlawful processing of the Personal Data;

(d)

any breach of the security and/or confidentiality as set out in Articles 3 and 4 of this Data Processing Agreement leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data, or any indication of such breach having taken place or being about to take place;

(e)

where, in the opinion of the Data Processor, implementing an instruction received from the Data Controller would violate applicable laws to which the Data Controller or the Data Processor are subject.

7.3

The Data Processor shall at all times have in place written procedures which enable it to promptly respond to the Data Controller about an incident. Where an incident is reasonably likely to require a data breach notification by the Data Controller under applicable EU Data Protection Law, the Data Processor shall implement its written procedures in such a way that it is in a position to notify the Data Controller no later than 24 hours of having become aware of such an incident.

7.4

Any notifications made to the Data Controller pursuant to this Article 7 shall be addressed to the Data Protection Officer or other employee of the Data Controller whose contact details are provided during the registration process, and shall contain:

(a)

a description of the nature of the incident, including where possible the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned;

(b)

the name and contact details of the Data Processor’s data protection officer or another contact point where more information can be obtained;

(c)

a description of the likely consequences of the incident; and

(d)

a description of the measures taken or proposed to be taken by the Data Processor to address the incident including, where appropriate, measures to mitigate its possible adverse effects.

8. Contracting with Sub-Processors

8.1

The Data Controller authorizes the Data Processor to engage the sub-processors in the country locations for the Service-related activities specified as described in Section 1.4. Data Processor shall inform the Data Controller of any addition or replacement of such sub-processors giving the Data Controller an opportunity to object to such changes.

8.2

Notwithstanding any authorization by the Data Controller with the meaning of the preceding paragraph, the Data Processor shall remain fully liable vis-à-vis the Data Controller for the performance of any such sub-processor that fails to fulfill its data protection obligations.

8.3

The consent of the Data Controller pursuant to Article 8.1 shall not alter the fact that consent is required under Article 6 for the engagement of sub-processors in a country outside the European Economic Area without a suitable level of protection.

8.4

The Data Processor shall ensure that the sub-processor is bound by the same data protection obligations of the Data Processor under this Data Processing Agreement, shall supervise compliance thereof, and must in particular impose on its sub-processors the obligation to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of EU Data Protection Law.

8.5

The Data Controller may request that the Data Processor audit a sub-processor or provide confirmation that such an audit has occurred (or, where available, obtain or assist customer in obtaining a third-party audit report concerning the sub-processor’s operations) to ensure compliance with its obligations imposed by the Data Processor in conforming with this Data Processing Agreement

9. Returning or Destruction of Personal Data

9.1

Upon termination of this Data Processing Agreement, upon the Data Controller’s written request, or upon fulfillment of all purposes agreed in the context of the Services whereby no further processing is required, the Data Processor shall, at the discretion of the Data Controller, either delete, destroy, or return all Personal Data to the Data Controller and destroy or return any existing copies.

9.2

The Data Processor shall notify all third parties supporting its own processing of the Personal Data of the termination of the Data Processing Agreement and shall ensure that all such third parties shall either destroy the Personal Data or return the Personal Data to the Data Controller, at the discretion of the Data Controller.

10. Assistance to Data Controller

10.1

The Data Processor shall assist the Data Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Data Controller’s obligation to respond to request for exercising the data subject’s rights under the GDPR.

10.2

The Data Processor shall assist the Data Controller in ensuring compliance with the obligations pursuant to Section 4 (Security) and prior consultations with supervisory authorities required under Article 36 of the GDPR taking into account the nature of processing and the information available to the Data Processor.

10.3

The Data Processor shall make available to the Data Controller all information necessary to demonstrate compliance with the Data Processor’s obligations and to allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller.

11. Liability and Indemnity

11.1

The Data Processor indemnifies the Data Controller and holds the Data Controller harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the Data Controller and arising directly or indirectly out of or in connection with a breach of this Data Processing Agreement and/or the Applicable Data Protection Law by the Data Processor. The Data Controller indemnifies the Data Processor and holds the Data Processor harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the Data Processor and arising directly or indirectly out of or in connection with a breach of this Data Processing Agreement and/or the Applicable Data Law by the Data Controller.

12. Duration and Termination

12.1

This Data Processing Agreement shall come into effect on the date the Data Controller electronically signs this Data Processing Agreement.

12.2

Termination or expiration of this Data Processing Agreement shall not discharge the Data Processor from its confidentiality obligations pursuant to Article 3.

12.3

The Data Processor shall process Personal Data until the date of termination of the Service Agreement, unless instructed otherwise by the Data Controller, or until such data is returned or destroyed on instruction of the Data Controller.

13. Miscellaneous

13.1

In the event of any inconsistency between the provisions of this Data Processing Agreement and the provisions of the Service Agreement, the provisions of this Data Processing Agreement shall prevail.

13.2

This Data Processing Agreement is governed by the laws of the state of Nevada in the United States. Any disputes arising from or in connection with this Data Processing Agreement shall be brought exclusively before the competent court in Las Vegas, Nevada.