Narvii Inc. / Luna Park
PLEASE READ THESE MEMBER TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY NARVII INC. (D/B/A LUNA PARK) (“LUNA PARK”). BY COMPLETING AN ONLINE ORDER (WHETHER BY LUNA PARK OR AN AUTHORIZED PAYMENT PROCESSOR, SUCH AS STRIPE) OR BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH LUNA PARK IN WHICH THE SERVICES, TERM, AND PRICING BEING OFFERED ARE SET FORTH AND, IN EACH CASE, WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“MEMBER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA LUNA PARK’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY LUNA PARK SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
- Order Forms; Access to the Service. Upon mutual execution or upon completion online, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Member’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Luna Park grants Member a nonexclusive, limited, personal, non-sublicensable, nontransferable right and license to internally access and use the Luna Park product(s) and/or service(s) specified in such Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Member, only as provided herein and only in accordance with Luna Park’s applicable official user documentation for such Service (the “Documentation”).
- Service Updates. From time to time, Luna Park may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Luna Park shall have no obligation under this Agreement or otherwise to provide any such Updates. Member understands that Luna Park may make improvements and modifications to the Services at any time in its sole discretion; provided that Luna Park shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
- Ownership; Feedback. As between the parties, Luna Park retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Luna Park for the purposes of this Agreement, including any copies, improvements, and derivative works of the foregoing. The platform and any software or services distributed or otherwise provided to Member hereunder (including without limitation any software or services identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Member may (but is not obligated to) provide suggestions, comments or other feedback to Luna Park with respect to the Service (“Feedback”). Luna Park acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Member shall, and hereby does, grant to Luna Park a nonexclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Luna Park’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Member may develop, produce, market, or distribute.
- Fees; Payment. Member shall pay Luna Park fees as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Member shall be responsible for all taxes associated with Service (excluding taxes based on Luna Park’s net income). All Fees paid are non-refundable and are not subject to set-off. If Member exceeds any user or usage limitations as set forth in an Order Form, then (i) Luna Park shall invoice Member for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Luna Park’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below), such renewal shall include the additional fees for such excess users and usage. Luna Park reserves the right to increase Fees for any Order Form Renewal Term by providing Member with written notice (email being sufficient) of any such increase at least sixty (60) days prior to the expiration of the then-current Order Form Initial Term or Order Form Renewal Term, as applicable.
- Member Data. For purposes of this Agreement, “Member Data” shall mean any data, information or other material provided, uploaded, or submitted through the Service by Member or Member’s End Users. Member shall retain all right, title and interest in and to the Member Data, including all intellectual property rights therein. Member, not Luna Park, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Member Data. Member represents and warrants that it has all rights necessary to provide the Member Data to Luna Park as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Luna Park shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Member Data. Luna Park is not responsible to Member for unauthorized access to Member Data or the unauthorized use of the Service unless such access is due to Luna Park’s gross negligence or willful misconduct. Member is responsible for the use of the Service by any person to whom Member has given access to the Service. In the event and to the extent that the Service involves processing Personal Data (as defined in the DPA) subject to Data Protection Laws (as defined in the DPA), the Data Processing Addendum attached hereto (the “DPA”) is hereby included and incorporated into this Agreement. Member agrees and acknowledges that Member Data may be irretrievably deleted if Member’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Member acknowledges and agrees that Luna Park may (i) internally use and modify (but not disclose) Member Data for the purposes of (A) providing the Service to Member and its End Users and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use, retain and make available Aggregated De-Identified Data for Luna Park’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Luna Park’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Luna Park in connection with Member’s and End Users’ use of the Service, but only in aggregate, de-identified form which can in no way be linked specifically to Member.
- Usage Data. ”Usage Data” means data relating to Member’s and its End Users’ use of the Services including, without limitation, data related to the performance of various aspects of the Services and related systems and technologies (including information provided by third-party analytical tools), for example whether End Users utilize one functionality of the Services more than another. Luna Park may collect, retain, use, analyze, copy, process, disclose, and reproduce Usage Data for: (i) Luna Park’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Luna Park’s products and services as well as developing new products, services, features, and functionalities) and (ii) providing Member with internal reports that contain or reflect Usage Data to show Member’s End Users’ engagement with the Services.
- Third Party Integrations. Member acknowledges and agrees that (i) the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (e.g., other vendors of Member) (“Third Party Integrations”), (ii) the availability and operation of the Service or certain portions thereof may be dependent on Luna Park’s ability to access such Third Party Integrations, and (iii) Member’s failure to provide adequate access or any retraction of permissions relating to such Third Party Integrations may result in a suspension or interruption of the Service. Member hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Third Party Integrations that it integrates with the Service, and Member shall indemnify, defend and hold harmless Luna Park for all claims, damages and liabilities arising out of Member’s use of any Third Party Integrations in connection with or through the Service. Luna Park cannot and does not guarantee that the Service shall incorporate (or continue to incorporate) any particular Third Party Integrations and does not make any representations or warranties with respect to Third Party Integrations. Member is solely responsible for procuring any and all rights necessary for it to access Third Party Integrations (including any Member Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Member and a third party provider is solely between Member and such third party provider and is governed by such third party’s terms and conditions.
- Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Luna Park may suspend or limit Member’s access to or use of the Service if (i) Member’s account is more than sixty (60) days past due, or (ii) Member’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Luna Park’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Luna Park shall use reasonable good faith efforts to work with Member to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Luna Park shall use commercially reasonable efforts to provide notice to Member describing the nature of the damage or degradation; and (c) Luna Park shall reinstate Member’s use of or access to the Service, as applicable, if Member remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Luna Park to Member shall be billable at Luna Park’s standard rates then in effect.
- Indemnification. Member (“Indemnitor”) shall defend, indemnify, and hold harmless Luna Park, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Luna Park Indemnitees”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise (i) from or relate to any claim that Member’s or End Users’ use of the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right, (ii) from or relates to the Member Data (including, without limitation Member’s provision or use thereof in connection with the Services) or (iii) from or relates to Member’s breach of Section 6(a) and (b) (Restrictions). The Indemnitor will not enter into any settlement (other than for payment of money subject to its indemnity) that adversely affects the Luna Park Indemnitee’s rights or interests without its prior written approval, not to be unreasonably withheld, conditioned or delayed.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. LUNA PARK EXPRESSLY DISCLAIMS ALL GUARANTEES AND WARRANTIES THAT THE SERVICE WILL ACHIEVE ANY RESULT OR OUTCOME.
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND FOR MEMBER’S BREACH OF SECTION 6 (RESTRICTIONS), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY MEMBER TO LUNA PARK HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
- Miscellaneous. This Agreement (including all Order Forms) represents the entire agreement between Member and Luna Park with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Member and Luna Park with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control only to the extent of the conflict. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York County, New York. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Luna Park may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
Data Processing Addendum
This form Data Processing Addendum (“DPA”) is intended for use by a U.S.-based processor when providing services to a customer subject to the EU and/or UK GDPR, and contemplates a transfer of personal data to the United States from the EEA, the UK and Switzerland. The DPA is drafted as an attachment to your Master Services Agreement (“MSA”), and incorporates the new EU Standard Contractual Clauses (“EU SCCs”) (adopted by the EU Commission on June 4, 2021) and the International Data Transfer Addendum to the SCCs (issued by the UK Information Commissioner under S119A(1) of the UK Data Protection Act 2018 (the “UK Addendum”). The EU SCCs were required for all new EU transfers as of September 27, 2021, but you have until December 27, 2022, to replace DPAs containing the old SCCs entered into prior to September 27, 2021. The UK Addendum is required for all new UK transfers after September 21, 2022, but you have until March 21, 2024, to replace existing DPAs containing the old SCCs (with previously required UK amendments).
This version of our form EU and UK Data Processing Addendum (Processor Form) is intended for use online with no signature by either party. This online form can be used if your processing activities and transfers are very similar for most or all of your customers, and you can pre-complete the Exhibits with information about such standard processing activities and transfers.
- DPA – Main Addendum: The DPA incorporates processor-friendly versions of the mandatory terms between controllers and processors pursuant to Article 28 of the GDPR. Since this form is drafted to be processor-friendly, do not use this form with your vendors who are processors or subprocessors for you. Your Gunderson Dettmer attorney can provide a controller-friendly DPA to use with your vendors.
- Exhibit A – Details of the Processing: You will need to complete Exhibit A with details of the processing, as mandated by GDPR Art. 28. We have included some commonly used examples, but please review in detail to make sure the exhibit is accurate for your processing activities.
- Exhibit B – Details of the Transfer: Exhibit B contains the information required by Annex I and III of the SCCs and Table 1, Annex 1A, and Annex 1B of the UK Addendum. You will need to complete details of the exporter (your customer), importer (your company), the transfer, and a list of your authorized subprocessors.
- Exhibit C – Technical and Organizational Security Measures: The new SCCs require a more comprehensive description of your technical and organizational security measures. We have included some examples to assist your completion of this exhibit.
- Exhibit D – UK Addendum: Exhibit D modifies the EU SCCs to allow transfers of UK personal data to third countries. You will need to complete the details in Table 4 (“Ending this UK Addendum when the Approved UK Addendum Changes”) and select the governing law and jurisdiction in Sections 12(c), 15(m), and 15(n).
- Exhibit E – United States Privacy Law Exhibit: The California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CCPA”) and Virginia Consumer Data Protection Act (“VCDPA”) require that a business/controller enter into specific contractual terms with its service providers/processors. This Exhibit does not require customization, but it can be deleted if neither CCPA nor VCDPA applies.
Please note the following:
- The EU SCCs are incorporated by reference, and the full text is not included in this form DPA. In order to keep this form short and streamlined, the EU SCCs are incorporated by reference instead of included as an exhibit, and applicable Section 6.3 sets forth applicable modifications to, and selections under, the SCCs. Please consult your Gunderson Dettmer attorney to make sure the selections are appropriate for your business. If you prefer to include the full text of the EU SCCs, these can be added as Exhibit D. The EU SCCs have four modules:
- Module 1: Controller-to-Controller Transfers
- Module 2: Controller-to-Processor Transfers
- Module 3: Processor-to-Processor Transfers (new to 2021 EU SCCs)
- Module 4: Processor-to-Controller Transfer (new to 2021 EU SCCs)
- The DPA can be negotiated between the parties, but the text of the EU SCCs cannot be amended except where options are expressly indicated. The terms of the EU SCCs have been pre-approved by the European Commission, and any amendment (except where optional language is expressly indicated) means that the pre-approved status is lost.
- You can limit liability as between you and your customer, but you cannot limit liability to the data subject. While this DPA is part of your commercial arrangement with your customer and can be subject to any limitation of liability you have in the MSA, you can never limit liability to the data subject (the individual whose personal data you are processing).
- You need to, at a minimum, notify your customers of a subprocessor replacement and give them time to object: While the old SCCs required consent to subprocessor replacements, most commercial DPAs handled “consent” through customer notification and an opportunity to object, rather than express written consent. Such a “notice + opportunity to object” mechanism is expressly included in the EU SCCs (SCCs Clause 9, Option 2), and we have included the time period for prior notice to the customer in Section 4.2 of the DPA (our suggestion in the form is 10 days prior notice, but you can choose any reasonable time period). You can choose to publish your list of subprocessors on a website or provide a list to your customer by other means (e.g., attached to the agreement and updated via email). We recommend that you review your process for notification and subprocessor replacements with your Gunderson Dettmer attorney, so that that DPA accurately reflects how you handle this.
- You need to be more detailed in listing your technical and organizational security measures: Unlike the old SCCs where descriptions of security measures were often very general, the EU SCCs require a more detailed description. We have included some examples in Exhibit C, but please note that you do not have to have all these measures in place. Your security measures need to be appropriate for the level of risk associated with the personal data you process.
- You need to make the following selections in the SCCs (see Section 6.3 of the DPA):
- Docking Clause (Clause 7 of the EU SCCs; Section 6.3.1 of the DPA): The Docking Clause is an optional clause to be included in the EU SCCs. If included, the docking clause permits a third party to join such SCCs after they have been executed between two parties. One example of this clause being utilized would be in the case of a controller entering into the EU SCCs between one of its processors and subprocessors. We have set this clause not to apply by default because this is drafted to be a click-through DPA.
- Governing Law (Clause 17 of the EU SCCs; Section 6.3.5 of the DPA): You will need to select the governing law. Modules 1, 2 and 3 require the governing law to be that of an EU member state. Module 4 (Processor to Controller) allows for the governing law of a non-EU jurisdiction (e.g., a U.S. state), but note that Module 4 is less commonly used. One option for governing law is to select an EU member state that does not restrict third party beneficiary rights (i.e., allowing the data subject to enforce the SCCs). Another option is to choose the EU member state where the data exporter is located, unless the laws of such country restrict third party beneficiary rights. Please note that by default, the governing law with respect to UK personal data and Swiss personal data will be England & Wales and Switzerland, respectively. However, the parties may choose to select Scotland and Northern Ireland as the governing law for purposes of the UK SCCs.
- Choice of Forum (Clause 18 of the EU SCCs; Section 6.3.6 of the DPA): The forum for disputes under Modules 1, 2 and 3 must be the courts of an EU member state. Take into consideration convenience and language barriers in making your selection. The data exporter may insist on disputes being handled in the EU member state where it is located or headquartered. Regardless of your selection here, data subjects can bring an action in the courts of the member states where they reside. Module 4 allows for disputes to be resolved in a non-EU country. Please note that by default, the choice of forum with respect to UK personal data and Swiss personal data will be England & Wales and Switzerland, respectively. However, the parties may choose to select Scotland and Northern Ireland as the governing law for purposes of the UK SCCs.
- The EU SCCs alone cannot be used for transfers from the UK: There are two mechanisms to utilize standard contractual clauses as a basis for restricted UK data transfers. The first is to utilize the UK Addendum (defined and incorporated into the draft DPA below), which includes various clauses to amend the EU SCCs for use with respect to UK personal data. The second is to enter into an International Data Transfer Agreement (“IDTA”), which is effectively the UK’s own standalone set of standard contractual clauses. The IDTA can be found here. If you are receiving EU personal data under a DPA with the EU SCCs, using the UK Addendum (as set forth in this form DPA) is a simple and straightforward way to add UK personal data to the scope of the agreement. We recommend that you consult your Gunderson Dettmer attorney if you intend to use the IDTA in lieu of the UK Addendum for ex-UK transfers instead.
What do you need to do before using this DPA?
- Map your data transfers and include the results in your GDPR Article 30 Records. Data transfer mapping includes: (i) identifying transfers of personal data from the EEA, the UK and Switzerland and the parties involved in such transfer; (ii) identifying any onward transfers of personal data, e.g. to your vendors; and (iii) assessing whether you are a controller, processor or subprocessor for each transfer. If you have any questions about this assessment, please consult with a Gunderson attorney.
- Ensure that you have flow-down DPAs with EU SCCs in place with your vendors (processors and subprocessors). Gunderson Dettmer can provide a form for use with your vendors, but note that most larger vendors will only use their own form DPA with the EU SCCs.
Do you need to perform a Data Transfer Impact Assessment before using the SCCs?
- Pursuant to Clause 14 of the EU SCCs, both the data exporter and data importer must make an assessment of facts surrounding the transfer (a “Data Transfer Impact Assessment” or “DTIA” for purposes of the GDPR, and an International Transfer Risk Assessment (“ITRA”) for purposes of the UK GDPR) to determine whether additional appropriate safeguards to be put into effect to protect the personal data. If you are a data importer, you must make available to the data exporter (your customer) information relevant for the customer’s DTIA or ITRA.
- If your processing activities are consistent for all or most of your customers (e.g., same or similar types of data, data subjects and onward transfers), consider providing your customers with a standard pre-completed DTIA or ITRA upon request. While you may still need to assist some customers with their own (likely more extensive DTIAs or ITRA), for lower risk transfers a standard customer-facing version may suffice. If you would like to draft such a form DTIA or ITRA, please reach out to a Gunderson Dettmer attorney who can help.
Data Processing Addendum
This EU and UK Data Processing Addendum (“DPA”) supplements the Member Terms (the “Agreement”) between Narvii, Inc. (d/b/a Luna Park) (“Company,” “us,” “we”) and the customer entity that is a party to the Agreement (“Customer” or “you”). We may update this Addendum from time to time, and we will provide reasonable notice of any such updates. This DPA incorporates the terms of the Agreement, and any terms not defined in this Addendum shall have the meaning set forth in the Agreement.
- “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.
- “Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Customer’s Personal Data to enable Company to perform its obligations under this DPA or the Agreement, and who is either (1) listed in Exhibit B or (2) subsequently authorized under Section 4.2 of this DPA.
- “Company Account Data” means personal data that relates to Company’s relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer’s account and billing information of individuals that Customer has associated with its account. Company Account Data also includes any data Company may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.
- “Company Usage Data” means Service usage data collected and processed by Company in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.
- “Data Exporter” means Customer.
- “Data Importer” means Company.
- “Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including: (i) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CCPA”), (ii) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”) and the EU GDPR as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”) (together, collectively, the “GDPR”), (iii) the Swiss Federal Act on Data Protection, ; (iv) the UK Data Protection Act 2018; and (v) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (vi) the Virginia Consumer Data Protection Act (“VCDPA”) in each case, as updated, amended or replaced from time to time. The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing”, “processor,” “controller,” and “supervisory authority” shall have the meanings set forth in the GDPR.
- “EU SCCs” means the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time), as modified by Section 6.2 of this DPA.
- “ex-EEA Transfer” means the transfer of Personal Data, which is processed in accordance with the GDPR, from the Data Exporter to the Data Importer (or its premises) outside the European Economic
Area (the “EEA”), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR.
- “ex-UK Transfer” means the transfer of Personal Data covered by Chapter V of the UK GDPR, which is processed in accordance with the UK GDPR and the Data Protection Act 2018, from the Data Exporter to the Data Importer (or its premises) outside the United Kingdom (the “UK”), and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018.
- “Services” shall have the meaning set forth in the Agreement.
- “Standard Contractual Clauses” means the EU SCCs and the UK SCCs.
- “UK Addendum” has the meaning set forth in Exhibit D.
- “UK SCCs” means the EU SCCs, as amended by the UK Addendum.
- Relationship of the Parties; Processing of Data
- The parties acknowledge and agree that with regard to the processing of Personal Data, Customer may act either as a controller or processor and, except as expressly set forth in this DPA or the Agreement, Company is a processor. Customer 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 Data Protection Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer’s instructions will not cause Company to be in breach of the Data Protection Laws. Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Company by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Company regarding the processing of such Personal Data. Customer shall not provide or make available to Company any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Company from all claims and losses in connection therewith.
- Company 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 DPA or any other documented instructions provided by Customer, 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 Company is subject; in such a case, the Company shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest, or (iii) in violation of Data Protection Laws. Customer hereby instructs Company to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services.
- The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this DPA.
- Following completion of the Services, at Customer’s choice, Company shall return or delete Customer’s Personal Data, unless further storage of such Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Company 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 Customer and Company 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 8.1(d) and Clause 8.5 of the EU SCCs (as applicable) shall be provided by Company to Customer only upon Customer’s request.
- CCPA and VCDPA Language]. The Parties acknowledge and agree that the processing of personal information or personal data that is subject to the CCPA or VCDPA shall be carried out in accordance with the terms set forth in Exhibit E.
Company shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Company’s confidentiality obligations in the Agreement. Customer agrees that Company may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this DPA, the Agreement, or the provision of Services to Customer.
- Authorized Sub-Processors
- Customer acknowledges and agrees that Company may (1) engage its Affiliates and the Authorized Sub-Processors listed in Exhibit B to this DPA to access and process Personal Data in connection with the Services and (2) 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 DPA, Customer provides general written authorization to Company to engage sub-processors as necessary to perform the Services.
- A list of Company’s current Authorized Sub-Processors (the “List”) will be made available to Customer, either attached hereto, at a link provided to Customer, via email or through another means made available to Customer. Such List may be updated by Company from time to time. Company may provide a mechanism to subscribe to notifications of new Authorized Sub-Processors and Customer agrees to subscribe to such notifications where available. At least ten (10) days before enabling any third party other than existing Authorized Sub-Processors to access or participate in the processing of Personal Data, Company will add such third party to the List and notify Customer via email. Customer may object to such an engagement by informing Company within ten (10) days of receipt of the aforementioned notice by Customer, provided such objection is in writing and based on reasonable grounds relating to data protection. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Company from offering the Services to Customer.
- If Customer reasonably objects to an engagement in accordance with Section 4.2, and Company cannot provide a commercially reasonable alternative within a reasonable period of time, Customer may discontinue the use of the affected Service by providing written notice to Company. Discontinuation shall not relieve Customer of any fees owed to Company under the Agreement.
- If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Company, that third party will be deemed an Authorized Sub-Processor for the purposes of this DPA.
- Company 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 Company under this DPA with respect to the protection of Personal Data. In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Company, Company will remain liable to Customer for the performance of the Authorized Sub-Processor’s obligations under such agreement.
- If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Company 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 Company to Customer pursuant to Clause 9(c) of the EU SCCs may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Company beforehand, and that such copies will be provided by the Company only upon request by Customer.
- Security of Personal Data.
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, Company shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data. Exhibit C sets forth additional information about Company’s technical and organizational security measures.
- Transfers of Personal Data
- The parties agree that Company may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Company’s primary processing operations take place in the United States, and that the transfer of Customer’s Personal Data to the United States is necessary for the provision of the Services to Customer. If Company transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Company will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
- Ex-EEA Transfers. The parties agree that ex-EEA Transfers are made pursuant to the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:
- Module One (Controller to Controller) of the EU SCCs apply when Company is processing Personal Data as a controller pursuant to Section 9 of this DPA.
- Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Company is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.
- Module Three (Processor to Sub-Processor) of the EU SCCs apply when Customer is a processor and Company is processing Personal Data on behalf of Customer as a sub-processor.
- For each module, where applicable the following applies:
- The optional docking clause in Clause 7 does not apply;
- In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of sub-processor changes shall be as set forth in Section 4.2 of this DPA;
- In Clause 11, the optional language does not apply;
- All square brackets in Clause 13 are hereby removed;
- In Clause 17 (Option 1), the EU SCCs will be governed by the laws of the Republic of Ireland;
- In Clause 18(b), disputes will be resolved before the courts of the Republic of Ireland;
- Exhibit B to this DPA contains the information required in Annex I and Annex III of the EU SCCs;
- Exhibit C to this DPA contains the information required in Annex II of the EU SCCs; and
- By entering into this DPA, the parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes.
- Ex-UK Transfers. The parties agree that ex-UK Transfers are made pursuant to the UK SCCs, which are deemed entered into and incorporated into this DPA by reference, and amended and completed in accordance with the UK Addendum, which is incorporated herein as Exhibit D of this DPA.
- Transfers from Switzerland. The parties agree that transfers from Switzerland are made pursuant to the EU SCCs with the following modifications:
- The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the EU SCCs shall be interpreted to include the Federal Act on Data Protection of 19 June 1992 (the “FADP,” and as revised as of 25 September 2020, the “Revised FADP”) with respect to data transfers subject to the FADP.
- The terms of the EU SCCs shall be interpreted to protect the data of legal entities until the effective date of the Revised FADP.
- Clause 13 of the EU SCCs is modified to provide that the Federal Data Protection and Information Commissioner (“FDPIC”) of Switzerland shall have authority over data transfers governed by the FADP and the appropriate EU supervisory authority shall have authority over data transfers governed by the GDPR. Subject to the foregoing, all other requirements of Section 13 shall be observed.
- The term “EU Member State” as utilized in the EU SCCs shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from exercising their rights in their place of habitual residence in accordance with Clause 18(c) of the EU SCCs.
- Supplementary Measures. In respect of any ex-EEA Transfer or ex-UK Transfer, the following supplementary measures shall apply:
- As of the date of this DPA, the Data Importer has not received any formal legal requests from any government intelligence or security service/agencies in the country to which the Personal Data is being exported, for access to (or for copies of) Customer’s Personal Data (“Government Agency Requests”);
- If, after the date of this DPA, the Data Importer receives any Government Agency Requests, Company shall attempt to redirect the law enforcement or government agency to request that data directly from Customer. As part of this effort, Company may provide Customer’s basic contact information to the government agency. If compelled to disclose Customer’s Personal Data to a law enforcement or government agency, Company shall give Customer reasonable notice of the demand and cooperate to allow Customer to seek a protective order or other appropriate remedy unless Company is legally prohibited from doing so. Company shall not voluntarily disclose Personal Data to any law enforcement or government agency. Data Exporter and Data Importer shall (as soon as reasonably practicable) discuss and determine whether all or any transfers of Personal Data pursuant to this DPA should be suspended in the light of the such Government Agency Requests; and
- The Data Exporter and Data Importer will meet regularly to consider whether:
- the protection afforded by the laws of the country of the Data Importer to data subjects whose Personal Data is being transferred is sufficient to provide broadly equivalent protection to that afforded in the EEA or the UK, whichever the case may be;
- additional measures are reasonably necessary to enable the transfer to be compliant with the Data Protection Laws; and
- it is still appropriate for Personal Data to be transferred to the relevant Data Importer, taking into account all relevant information available to the parties, together with guidance provided by the supervisory authorities.
- If Data Protection Laws require the Data Exporter to execute the Standard Contractual Clauses applicable to a particular transfer of Personal Data to a Data Importer as a separate agreement, the Data Importer shall, on request of the Data Exporter, promptly execute such Standard Contractual Clauses incorporating such amendments as may reasonably be required by the Data Exporter to reflect the applicable appendices and annexes, the details of the transfer and the requirements of the relevant Data Protection Laws.
- If either (i) any of the means of legitimizing transfers of Personal Data outside of the EEA or UK set forth in this DPA cease to be valid or (ii) any supervisory authority requires transfers of Personal Data pursuant to those means to be suspended, then Data Importer may by notice to the Data Exporter, with effect from the date set out in such notice, amend or put in place alternative arrangements in respect of such transfers, as required by Data Protection Laws.
- Rights of Data Subjects
- Company shall, to the extent permitted by law, notify Customer 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 Company receives a Data Subject Request in relation to Customer’s data, Company will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Customer 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 Company, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.
- Company shall, at the request of the Customer, and taking into account the nature of the processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Customer is itself unable to respond without Company’s assistance and (ii) Company is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
- Actions and Access Requests; Audits
- Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Customer does not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
- Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
- Company shall maintain records sufficient to demonstrate its compliance with its obligations under this DPA, and retain such records for a period of three (3) years after the termination of the Agreement. Customer shall, with reasonable notice to Company, have the right to review, audit and copy such records at Company’s offices during regular business hours.
- Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Company shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Company’s compliance with prevailing data security standards applicable to the processing of Customer’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer’s independent third party representative to conduct an audit or inspection of Company’s data security infrastructure and procedures that is sufficient to demonstrate Company’s compliance with its obligations under Data Protection Laws, provided that (a) Customer provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Company’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year; and (c) such audit shall be restricted to data relevant to Customer. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Company for any time expended for on-site audits. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 8.9 of the EU SCCs shall be carried out in accordance with this Section 8.4.
- Company shall immediately notify Customer if an instruction, in the Company’s opinion, infringes the Data Protection Laws or Supervisory Authority.
- In the event of a Personal Data Breach, Company shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as Company in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Company’s reasonable control).
- In the event of a Personal Data Breach, Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance necessary for Customer 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 8.6 and 8.7 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Customer. Company’s obligation to report or respond to a Personal Data Breach under Sections 8.6 and 8.7 will not be construed as an acknowledgement by Company of any fault or liability with respect to the Personal Data Breach.
Details of Processing
Nature and Purpose of Processing: Company will process Customer’s Personal Data as necessary to provide the Services under the Agreement, for the purposes specified in the Agreement and this DPA, and in accordance with Customer’s instructions as set forth in this DPA. The nature of processing includes, without limitation:
Receiving data, including collection, accessing, retrieval, recording, and data entry
Holding data, including storage, organization and structuring
Using data, including analysis, consultation, and testing
Updating data, including correcting, adaptation, alteration, alignment and combination
Protecting data, including restricting, encrypting, and security testing
Sharing data, including disclosure, dissemination, allowing access or otherwise making available
Returning data to the data exporter or data subject
Erasing data, including destruction and deletion.
Categories of Data Subjects: Customer employees
Categories of Personal Data: Company processes Personal Data contained in Company Account Data, Company Usage Data, and any Personal Data provided by Customer (including any Personal Data Customer collects from its end users and processes through its use of the Services) or collected by Company in order to provide the Services or as otherwise set forth in the Agreement or this DPA. Categories of Personal Data include name, location, email address, phone number, address, IP address, occupation, title, Company device identifiers.
Sensitive Data or Special Categories of Data: None.
The following includes the information required by Annex I and Annex III of the EU SCCs, and Table 1, Annex 1A, and Annex 1B of the UK Addendum.
- The Parties
Data exporter(s): The Customer
Contact details: As designated by Customer in Customer’s account
Signature and date: By entering into the Agreement, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, as of the Effective Date of the Agreement.
Role (controller/processor): The Data Exporter’s role is set forth in Section 2 of this Addendum.
Data importer(s): Narvii, Inc. (d/b/a Luna Park)
Address: 224 W. 35th St., Suite 1208 New York, NY 10001
Contact person’s name, position and contact details: Arlen Marmel, Chief Operating Officer, email@example.com
Signature and date: By entering into the Agreement, Data Importer is deemed to have signed these Standard Contractual Clauses incorporated herein, as of the Effective Date of the Agreement.
Role (controller/processor): The Data Importer’s role is set forth in Section 2 of this Addendum.
- Description of the Transfer
|Data Subjects||As described in Exhibit A of the DPA.|
|Categories of Personal Data||As described in Exhibit A of the DPA.|
|Special Category Personal Data (if applicable)||As described in Exhibit A of the DPA.|
|Nature of the Processing||As described in Exhibit A of the DPA.|
|Purposes of Processing||As described in Exhibit A of the DPA.|
|Duration of Processing and Retention (or the criteria to determine such period)||As described in Exhibit A of the DPA.|
|Frequency of the transfer||As necessary to provide perform all obligations and rights with respect to Personal Data as provided in the Agreement or DPA.|
|Recipients of Personal Data Transferred to the Data Importer||Company will maintain and provide a list of its Subprocessors upon request.|
- Competent Supervisory Authority
The supervisory authority shall be the supervisory authority of the Data Exporter, as determined in accordance with Clause 13 of the EU SCCs. The supervisory authority for the purposes of the UK Addendum shall be the UK Information Commissioner’s Officer.
- List of Authorized Sub-Processors
|Name of Authorized Sub-Processor||Address||Contact Person Name, position, contact information||Description of processing||Country in which subprocessing will take place|
|Amazon Web Services||410 Terry Avenue North, Seattle, WA 98109-5210, U.S.A.||aws-EUfirstname.lastname@example.org||IaaS - All production services are hosted on AWS. All in-transit data is encrypted using industry standard strong cryptography, and all storage of data is secured through the use of AWS secure storage services.|
Elasticsearch and Kibana for Log analytics
|Twillio||375 Beale Street Suite 300 San Francisco, CA 94105 USAemail@example.com||Application event processer - Primarily used for application analytics as a generalized data pipeline where data can be routed to different services.|
Data forwarded to Mixpanel
|Mixpanel||One Front Street, 1 Front St #28th, San Francisco, United Statesfirstname.lastname@example.org||Analytics as a Service - Primary analytics platform||Google Cloud US-Central 1|
|1600 Amphitheatre Parkway Mountain View, CA email@example.com||BaaS - Infrastructure provider for hosting services and storage. Primarily used for temporarily storing live session data necessary to provide services.||Google Cloud US-Central 1|
|Salesforce||415 Mission Street, 3rd Floor. San Francisco, CA firstname.lastname@example.org||Messaging SaaS - Primary internal communications platform for Narvii, Inc.|
Internal notifications of live service sessions and fulfilled contact forms.
|Typeform||Carrer de Bac de Roda, 163, Barcelona||https://admin.typeform.com/to/dwk6gt/||SaaS - Primary tool for capturing inbound contact forms/requests and user surveys||AWS US|
Description of the Technical and Organisational Security Measures implemented by the Data Importer
The following includes the information required by Annex II of the EU SCCs and Annex II of the UK Addendum.
|Technical and Organizational Security Measure||Details|
|Measures of pseudonymisation and encryption of personal data||Company has deployed secure methods and protocols for transmission of confidential or sensitive information over public networks. Databases housing sensitive customer data are encrypted at rest. Company uses only recommended secure cipher suites and protocols to encrypt all traffic in transit and Customer Data is securely encrypted with strong ciphers and configurations when at rest.|
|Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services||Company’s customer agreements contain strict confidentiality obligations. Additionally, Company requires every downstream Subprocessor to sign confidentiality provisions that are substantially similar to those contained in Company’s customer agreements.|
Company has undergone a SOC 2 Type 2 audit that includes the Security and Processing Integrity Trust Service Criteria.
|Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident||Daily, weekly and monthly backups of production datastores are taken.|
Backups are periodically tested in accordance with information security and data management policies.
|Processes for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures in order to ensure the security of the processing||Company has undergone a SOC 2 Type 2 audit that includes the Security and Processing Integrity Trust Service Criteria.|
|Measures for user identification and authorization||Company uses secure access protocols and processes and follows industry best-practices for authentication, including Multifactor Authentication and Single Sign On (SSO). All production access requires the use of two-factor authentication, and network infrastructure is securely configured to vendor and industry best practices to block all unnecessary ports, services, and unauthorized network traffic.|
|Measures for the protection of data during transmission||Company has deployed secure methods and protocols for transmission of confidential or sensitive information over public networks. Company uses only recommended secure cipher suites and protocols to encrypt all traffic in transit (i.e. TLS 1.2)|
|Measures for the protection of data during storage||Encryption-at-rest is automated using AWS’s transparent disk encryption, which uses industry standard AES-256 encryption to secure all volume (disk) data. All keys are fully managed by AWS.|
|Measures for ensuring physical security of locations at which personal data are processed||All Company processing occurs in physical data centers that are managed by AWS. https://aws.amazon.com/compliance/data-center/controls/|
|Measures for ensuring events logging||Company monitors access to applications, tools, and resources that process or store Customer Data, including cloud services. Monitoring of security logs is managed by the security and engineering teams. Log activities are investigated when necessary and escalated appropriately.|
|Measures for ensuring system configuration, including default configuration||Company adheres to a change management process to administer changes to the production environment for the Services, including changes to its underlying software, applications, and systems. All production changes are automated through CI/CD tools to ensure consistent configurations.|
|Measures for internal IT and IT security governance and management||Company maintains an ISO 27001-compliant risk-based information security governance program. The framework for Company’s security program includes administrative, organizational, technical, and physical safeguards reasonably designed to protect the Services and confidentiality, integrity, and availability of Customer Data.|
|Measures for certification/assurance of processes and products||Company undergoes annual SOC 2 Type II and ISO 27001 audits.|
|Measures for ensuring data minimisation||Company’s Customers unilaterally determine what data they route through the Services. As such, Company operates on a shared responsibility model. Company gives Customers control over exactly what data enters the platform. Additionally, Company has built in self-service functionality to the Services that allows Customers to delete and suppress data at their discretion.|
|Measures for ensuring data quality||Company has a multi-tiered approach for ensuring data quality. These measures include: (i) unit testing to ensure quality of logic used to process API calls, (ii) database schema validation rules which execute against data before it is saved to our database, (iii) a schema-first API design using GraphQL and strong typing to enforce a strict contract between official clients and API resolvers. Company applies these measures across the board, both to ensure the quality of any Usage Data that Company collects and to ensure that the Company Platform is operating within expected parameters.Company ensures that data quality is maintained from the time a Customer sends Customer Data into the Services and until that Customer Data is presented or exported.|
|Measures for ensuring limited data retention||Customers unilaterally determine what data they route through the Services. As such, Company operates on a shared responsibility model. If a Customer is unable to delete Personal Data via the self-services functionality of the Services, then the Company deletes such Personal Data upon the Customer's written request, within the timeframe specified in this DPA and in accordance with Applicable Data Protection Law. All Personal Data is deleted from the Services following service termination.|
|Measures for ensuring accountability||Company has adopted measures for ensuring accountability, such as implementing data protection and information security policies across the business, recording and reporting Personal Data Breaches, and formally assigning roles and responsibilities for information security and data privacy functions. Additionally, the Company conducts regular third-party audits to ensure compliance with our privacy and security standards.|
|Measures for allowing data portability and ensuring erasure||Personal Data submitted to the Services by Customer may be deleted by the Customer or at the Customer’s request.|
Personal Data is incidental to the Company’s Services. Based on Privacy by Design and Data Minimization principles, Company severely limits the instances of Personal Data collection and processing within the Services. Most use cases for porting Personal Data from Company are not applicable. However, Company will respond to all requests for data porting in order to address Customer needs.
|Technical and organizational measures of sub-processors||The Company enters into Data Processing Agreements with its Authorized Sub-Processors with data protection obligations substantially similar to those contained in this DPA.|
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
Part 1: Tables
Table 1: Parties
|Start Date||This UK Addendum shall have the same effective date as the DPA|
|Key Contact||See Exhibit B of this DPA||See Exhibit B of this DPA|
Table 2: Selected SCCs, Modules and Selected Clauses
|EU SCCs||The Version of the Approved EU SCCs which this UK Addendum is appended to as defined in the DPA and completed by Section 6.2 and 6.3 of the DPA.|
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this UK Addendum is set out in:
|Annex 1A: List of Parties||As per Table 1 above|
|Annex 2B: Description of Transfer||See Exhibit B of this DPA|
|Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data:||See Exhibit C of this DPA|
|Annex III: List of Sub processors (Modules 2 and 3 only):||See Exhibit B of this DPA|
Table 4: Ending this UK Addendum when the Approved UK Addendum Changes
|Ending this UK Addendum when the Approved UK Addendum changes||☒ Importer☐ Exporter☐ Neither Party|
Entering into this UK Addendum:
- Each party agrees to be bound by the terms and conditions set out in this UK Addendum, in exchange for the other party also agreeing to be bound by this UK Addendum.
- Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making ex-UK Transfers, the Parties may enter into this UK Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this UK Addendum. Entering into this UK Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.
Interpretation of this UK Addendum
- Where this UK Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:
|UK Addendum||means this International Data Transfer Addendum incorporating the EU SCCs, attached to the DPA as Exhibit D.|
|EU SCCs||means the version(s) of the Approved EU SCCs which this UK Addendum is appended to, as set out in Table 2, including the Appendix Information|
|Appendix Information||shall be as set out in Table 3|
|Appropriate Safeguards||means the standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making an ex-UK Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.|
|Approved UK Addendum||means the template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as may be revised under Section 18 of the UK Addendum.|
|Approved EU SCCs||means the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time).|
|ICO||means the Information Commissioner of the United Kingdom.|
|ex-UK Transfer||shall have the same definition as set forth in the DPA .|
|UK||means the United Kingdom of Great Britain and Northern Ireland|
|UK Data Protection Laws||means all laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.|
|UK GDPR||shall have the definition set forth in the DPA.|
- The UK Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
- If the provisions included in the UK Addendum amend the Approved EU SCCs in any way which is not permitted under the Approved EU SCCs or the Approved UK Addendum, such amendment(s) will not be incorporated in the UK Addendum and the equivalent provision of the Approved EU SCCs will take their place.
- If there is any inconsistency or conflict between UK Data Protection Laws and the UK Addendum, UK Data Protection Laws applies.
- If the meaning of the UK Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
- Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after the UK Addendum has been entered into.
- Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for ex-UK Transfers, the hierarchy in Section 10 below will prevail.
- Where there is any inconsistency or conflict between the Approved UK Addendum and the EU SCCs (as applicable), the Approved UK Addendum overrides the EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved UK Addendum.
- Where this UK Addendum incorporates EU SCCs which have been entered into to protect ex-EU Transfers subject to the GDPR, then the parties acknowledge that nothing in the UK Addendum impacts those EU SCCs.
Incorporation and Changes to the EU SCCs:
- This UK Addendum incorporates the EU SCCs which are amended to the extent necessary so that:
- together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
- Sections 9 to 11 above override Clause 5 (Hierarchy) of the EU SCCs; and
- the UK Addendum (including the EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales.
- Unless the parties have agreed alternative amendments which meet the requirements of Section 12 of this UK Addendum, the provisions of Section 15 of this UK Addendum will apply.
- No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 of this UK Addendum may be made.
- The following amendments to the EU SCCs (for the purpose of Section 12 of this UK Addendum) are made:
- References to the “Clauses” means this UK Addendum, incorporating the EU SCCs;
- In Clause 2, delete the words: “and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”,
- Clause 6 (Description of the transfer(s)) is replaced with: “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
- Clause 8.7(i) of Module 1 is replaced with: “it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
- Clause 8.8(i) of Modules 2 and 3 is replaced with: “the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
- References to “Regulation (EU) 2016/679”, “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 (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
- References to Regulation (EU) 2018/1725 are removed;
- References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
- The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
- Clause 13(a) and Part C of Annex I are not used;
- The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
- In Clause 16(e), subsection (i) is replaced with: “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
- Clause 17 is replaced with: “These Clauses are governed by the laws of England and Wales.”;
- Clause 18 is replaced with: “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The parties agree to submit themselves to the jurisdiction of such courts.”; and
- The footnotes to the Approved EU SCCs do not form part of the UK Addendum, except for footnotes 8, 9, 10 and 11.
Amendments to the UK Addendum
- The parties may agree to change Clauses 17 and/or 18 of the EU SCCs to refer to the laws and/or courts of Scotland and Northern Ireland.
- If the parties wish to change the format of the information included in Part 1: Tables of the Approved UK Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
- From time to time, the ICO may issue a revised Approved UK Addendum which:
- makes reasonable and proportionate changes to the Approved UK Addendum, including correcting errors in the Approved UK Addendum; and/or
- reflects changes to UK Data Protection Laws;
The revised Approved UK Addendum will specify the start date from which the changes to the Approved UK Addendum are effective and whether the parties need to review this UK Addendum including the Appendix Information. This UK Addendum is automatically amended as set out in the revised Approved UK Addendum from the start date specified.
- If the ICO issues a revised Approved UK Addendum under Section 18 of this UK Addendum, if a party will as a direct result of the changes in the Approved UK Addendum have a substantial, disproportionate and demonstrable increase in:
- its direct costs of performing its obligations under the UK Addendum; and/or
- its risk under the UK Addendum,
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that party may end this UK Addendum at the end of a reasonable notice period, by providing written notice for that period to the other party before the start date of the revised Approved UK Addendum.
- The parties do not need the consent of any third party to make changes to this UK Addendum, but any changes must be made in accordance with its terms.
United States Privacy Law Exhibit
This United States Privacy Law Exhibit (“Exhibit”) supplements the DPA and includes additional information required by the CCPA and the VCDPA, in each case, as updated, amended or replaced from time to time. Any terms not defined in this Exhibit shall have the meanings set forth in the DPA and/or the Agreement.
- For purposes of this Section A, the terms “Business,” “Business Purpose,” “Commercial Purpose,” “Consumer,” “Personal Information,” “Processing,” “Sell,” “Service Provider,” “Share,” and “Verifiable Consumer Request” shall have the meanings set forth in the CCPA.
- All references to “Personal Data,” “Controller,” “Processor,” and “Data Subject” in the DPA shall be deemed to be references to “Personal Information,” “Business,” “Service Provider,” and “Consumer,” respectively, as defined in the CCPA.
- Except with respect to Company Account Data and Company Usage Data (as defined in the DPA), the parties acknowledge and agree that Company is a Service Provider for the purposes of the CCPA (to the extent it applies) and Company is receiving Personal Information from Customer in order to provide the Services pursuant to the Agreement, which constitutes a Business Purpose.
- Customer shall disclose Personal Information to Company only for the limited and specified purposes described in Exhibit A to this DPA.
- Company shall not Sell or Share Personal Information provided by Customer under the Agreement.
- Company shall not retain, use, or disclose Personal Information provided by Customer pursuant to the Agreement for any purpose, including a Commercial Purpose, other than as necessary for the specific purpose of performing the Services for Customer pursuant to the Agreement, or as otherwise set forth in the Agreement or as permitted by the CCPA.
- Company shall not retain, use, or disclose Personal Information provided by Customer pursuant to the Agreement outside of the direct business relationship between Company and Customer, except where and to the extent permitted by the CCPA.
- Company shall notify Customer if it makes a determination that it can no longer meet its obligations under the CCPA.
- Company will not combine Personal Information received from, or on behalf of, Customer with Personal Information that it receives from, or on behalf of, another party, or that it collects from its own interaction with the Consumer.
- Company shall comply with all obligations applicable to Service Providers under the CCPA, including by providing Personal Information provided by Customer under the Agreement the level of privacy protection required by CCPA.
- Company shall only engage a new sub-processor to assist Company in providing the Services to Customer under the Agreement in accordance with Section 4.1 of the DPA, including, without limitation, by: (i) notifying Customer of such engagement via the notification mechanism described in Section 4.1 of the DPA at least ten (10) days before enabling a new Sub-Processor; and (ii) entering into a written contract with the sub-processor requiring sub-processor to observe all of the applicable requirements set forth in the CCPA.
- Consumer Rights
- Company shall assist Customer in responding to Verifiable Consumer Requests to exercise the Consumer’s rights under the CCPA as set forth in Section 7 of the DPA.
- Audit Rights
- To the extent required by CCPA, Company shall allow Customer to conduct inspections or audits in accordance with Sections 8.3 and 8.4 of the DPA.
- For purposes of this Section B, the terms “Consumer,” “Controller,” “Personal data,” “Processing,” and “Processor” shall have the meanings set forth in the VCDPA.
- All references to “Data Subject” in this DPA shall be deemed to be references to “Consumer” as defined in the VCDPA.
- Except with respect to Company Account Data and Company Usage Data (as defined in the DPA), the parties acknowledge and agree that Customer is a Controller and Company is a Processor for the purposes of the VCDPA (to extent it applies).
- The nature, purpose, and duration of Processing, as well as the types of Personal Data and categories of Consumers are described in Exhibit A to this DPA.
- Company shall adhere to Customer’s instructions with respect to the Processing of Customer Personal Data and shall assist Customer in meeting its obligations under the VCDPA by:
- Assisting Customer in responding to Consumer rights requests under the VCDPA as set forth in Section 7 of the DPA;
- Complying with Section 5 (“Security of Personal Data”) of the DPA with respect to Personal Data provided by Customer;
- In the event of a Personal Data Breach, providing information sufficient to enable Customer to meet its obligations pursuant to Va. Code § 18.2-186.6; and
- Providing information sufficient to enable Customer to conduct and document data protection assessments to the extent required by VCDPA.
- Company shall maintain the confidentiality of Personal Data provided by Customer and require that each person Processing such Personal Data be subject to a duty of confidentiality with respect to such Processing;
- Upon Customer’s written request, Company shall delete or return all Personal Data provided by Customer in accordance with Section 2.4 of the DPA, unless retention of such Personal Data is required or authorized by law or the DPA and/or Agreement.
- In the event that Company engages a new sub-processor to assist Company in providing the Services to Customer under the Agreement, Company shall enter into a written contract with the sub-processor requiring sub-processor to observe all of the applicable requirements of a Processor set forth in the VCDPA.
- Audit Rights
- Upon Customer’s written request at reasonable intervals, Company shall, as set forth in Sections 8.3-8.4 of the DPA, (i) make available to Customer all information in its possession that is reasonably necessary to demonstrate Company’s compliance with its obligations under the VCDPA; and (ii) allow and cooperate with reasonable inspections or audits as required under the VCDPA.