Data Processing Addendum (DPA)

DEFINITIONS

PROCESSING OF PERSONAL DATA

Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data performed solely on behalf of Customer, (i) Customer is the Controller of Personal Data, (ii) Visitt is the Processor of such Personal Data, (iii) for the purposes of the CCPA (and to the extent applicable), Customer is the “Business” and Visitt is the “Service Provider” (as such terms are defined in the CCPA), with respect to Processing of Personal Data described in this Section ‎2.1. The terms “Controller” and “Processor” below hereby signify Customer and Visitt, respectively.

Customer’s Processing of Personal Data. Customer, in its use of the Service, and Customer’s instructions to the Processor, shall comply with Data Protection Laws. Customer shall establish and have any and all required legal bases in order to collect, Process and transfer to Processor the Personal Data, and to authorize the Processing by Processor, and for Processor’s Processing activities on Customer’s behalf, including the pursuit of ‘business purposes’ as defined under the CCPA.

Processor’s Processing of Personal Data. When Processing solely on Customer’s behalf under the Agreement, Processor shall Process Personal Data for the following purposes: (i) Processing in accordance with the Agreement and this DPA; (ii) Processing for Customer to be able to use the Service; (iii) Processing to comply with Customer’s reasonable and documented instructions, where such instructions are consistent with the terms of the Agreement, regarding the manner in which the Processing shall be performed; (iv) rendering Personal Data fully anonymous, non-identifiable and non-personal in accordance with applicable standards recognized by Data Protection Laws and guidance issued thereunder; (v) Processing as required under the laws applicable to Processor, provided that Processor shall inform Customer of the legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.

Details of the Processing. The subject-matter of Processing of Personal Data by Processor is the performance of the Service pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of Processing) to this DPA.

Sensitive Data. The Parties agree that the Services are not intended for the processing of Sensitive Data, and that if Customer wishes to use the Services to process Sensitive Data, it must first obtain the Processor’s explicit prior written consent.

CCPA Standard of Care; No Sale of Personal Information. Processor acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that Processor provides to Customer under the Agreement. Processor shall not have, derive, or exercise any rights or benefits regarding Personal Information Processed on Customer’s behalf, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA. Processor certifies that it understands the rules, requirements and definitions of the CCPA and agrees to refrain from selling (as such term is defined in the CCPA) any Personal Information Processed hereunder, without Customer’s prior written consent, nor taking any action that would cause any transfer of Personal Information to or from Processor under the Agreement or this DPA to qualify as “selling” such Personal Information under the CCPA.

RIGHTS OF DATA SUBJECTS

Data Subject Requests. Processor shall, to the extent legally permitted, promptly notify Customer or refer Data Subject or Consumer, as the case may be, to Customer, if Processor receives a request from a Data Subject or Consumer to exercise their rights (to the extent available to them under applicable law) of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, their right not to be subject to automated individual decision making, to opt-out of the sale of Personal Information, or the right not to be discriminated against (“Data Subject Request”). Taking into account the nature of the Processing, Processor shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible and reasonable, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws. Processor may refer Data Subject Requests received, and the Data Subjects making them, directly to the Customer for its treatment of such requests.

PROCESSOR PERSONNEL

Confidentiality. Processor shall ensure that its personnel engaged in the Processing of Personal Data have committed themselves to confidentiality.

Permitted Disclosures. Without derogating from Section ‎2.3 above and Section ‎5 below, Processor may disclose and Process the Personal Data (a) to the extent required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, or (b) otherwise as required by applicable Data Protection Laws (in such a case, Processor shall inform the Customer of the legal requirement before the disclosure, unless legally prohibited from doing so), or (c) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel(s), data protection advisor(s) and accountant(s).

SUB-PROCESSORS

Appointment of Sub-processors. Customer acknowledges and agrees that (a) Processor’s Affiliates may be retained as Sub-processors; and (b) Processor and Processor’s Affiliates may each engage third-party Sub-processors in connection with the provision of the Service.

List of Current Sub-processors and Notification of New Sub-processors. Processor makes available the current list of Sub-processors used by Processor to Process Personal Data via https://visitt.io/privacy/sub-processors. Such Sub-processor list includes the identities of those Sub-processors and the entity’s country (“Sub-Processor List”). The Sub-Processor List as of the date of first use of the Service by Customer is hereby deemed authorized, upon first use of the Service. Customer may reasonably object to Processor’s use of an existing Sub-processor by providing a written objection to privacy@visitt.io before Customer’s first use of the Services. In the event Customer reasonably objects to an existing Sub-processor, as permitted in the preceding sentences, Customer may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Service which cannot be provided by Processor without the use of the objected-to Sub-processor by providing written notice to Processor provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Processor. Customer will have no further claims against Processor due to (i) past use of approved Sub-processors prior to the date of objection or (ii) the termination of the Agreement (including, without limitation, requesting refunds) and the DPA in the situation described in this paragraph.

New Sub-processors appointment and Objection Right for New Sub-processors. Processor’s webpage accessible via https://visitt.io/privacy/sub-processors offers a mechanism to subscribe to notifications of new Sub-processors used to Process Personal Data, to which Customer shall subscribe, and when Customer subscribes, Processor shall provide notification of any new Sub-processor(s) before authorizing such new Sub-processor(s) to Process Personal Data in connection with the provision of the Service. Customer may reasonably object to Processor’s use of a new Sub-processor, for reasons relating to the protection of Personal Data intended to be Processed by such Sub-processor, by notifying Processor promptly in writing within three (3) business days after receipt of Processor’s notice of any such intention. Such written objection shall include those reasons for objecting to Processor’s use of such new Sub-processor. Failure to object to such new Sub-processor in writing within three (3) business days following Processor’s notice shall be deemed as acceptance of the new Sub-processor. In the event Customer reasonably objects to a new Sub-processor, as permitted in the preceding sentences, Processor will use reasonable efforts to make available to Customer a change in the Service or recommend a commercially reasonable change to Customer’s configuration or use of the Service to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Processor is unable to make available such change within thirty (30) days, Customer may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Service which cannot be provided by Processor without the use of the objected-to new Sub-processor, by providing written notice to Processor. All amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Processor. Until a decision is made regarding the new Sub Processor, Processor may temporarily suspend the Processing of the affected Personal Data and/or suspend access to the Account. Customer will have no further claims against Processor due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.

Agreements with Sub-processors. Processor or a Processor’s Affiliate has entered into a written agreement with each Sub-processor containing appropriate safeguards to the protection of Personal Data. Where Processor engages a new Sub-processor for carrying out specific Processing activities on behalf of the Customer, the same or materially similar data protection obligations as set out in this DPA shall be imposed on such new Sub-processor by way of a contract, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR. Where the new Sub-processor fails to fulfil its data protection obligations, Processor shall remain fully liable to the Customer for the performance of the new Sub-processor's obligations.

SECURITY

Controls for the Protection of Personal Data. Processor shall maintain industry-standard technical and organizational measures for protection of Personal Data Processed hereunder (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data, confidentiality and integrity of Personal Data, including those measures set forth in the Security Documentation), as may be amended from time to time. Upon the Customer’s reasonable request, Processor will assist Customer, at Customer’s cost, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to Processor.

Audits and Inspections. Upon Customer’s 14 days prior written request at reasonable intervals (no more than once every 12 months), and subject to strict confidentiality undertakings by Customer, Processor shall make available to Customer that is not a competitor of Processor (or Customer’s independent, reputable, third-party auditor that is not a competitor of Processor and not in conflict with Processor, subject to their confidentiality and non-compete undertakings) all information necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections, conducted by them (provided, however, that such information, audits, inspections and the results therefrom, including the documents reflecting the outcome of the audit and/or the inspections, shall only be used by Customer to assess compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without Processor’s prior written approval. Upon Processor's first request, Customer shall return all records or documentation in Customer's possession or control provided by Processor in the context of the audit and/or the inspection). Customer shall be fully responsible for bearing all the costs and expenses arising from or related to this Section. If and to the extent that the Standard Contractual Clauses apply, nothing in this Section 6.2 varies or modifies the Standard Contractual Clauses nor affects any Supervisory Authority’s or Data Subject’s rights under the Standard Contractual Clauses.

In the event of an audit or inspections as set forth above, Customer shall ensure that it (and each of its mandated auditors) will not cause (or, if it cannot avoid, minimize) any damage, injury or disruption to Processor’s premises, equipment, personnel and business while conducting such audit or inspection.

RETURN AND DELETION OF PERSONAL DATA
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Within 60 days following termination of the Agreement and subject thereto, Processor shall, at the choice of Customer (indicated through the Service or in written notification to Processor), delete or return to Customer all the Personal Data it Processes solely on behalf of the Customer in the manner described in the Agreement, and Processor shall delete existing copies of such Personal Data unless Data Protection Laws require or authorize the storage of the Personal Data. To the extent authorized or required by applicable law, Processor may also retain one copy of the Personal Data solely for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or for compliance with legal obligations.

CROSS-BORDER DATA TRANSFERS

Transfers from the EEA, Switzerland and the United Kingdom to countries that offer adequate level or data protection. Personal Data may be transferred from EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland) (collectively, “EEA”), Switzerland and the United Kingdom (“UK”) to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the European Union, the Member States or the European Commission, or Switzerland or the UK as relevant (“Adequacy Decisions”), as applicable, without any further safeguard being necessary.

Transfers from the EEA to other countries. If the Processing of Personal Data by Processor includes transfers (either directly or via onward transfer) from the EEA and/or Switzerland to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Processor for the lawful transfer of personal data (as defined in the GDPR) outside the EEA or Switzerland , as applicable (“EEA Transfer”), then Controller and Processor will enter into the Standard Contractual Clauses.  

Where the transfer of Personal Data is made subject to the Standard Contractual Clauses, the “Data Importer” thereunder shall be the Processor, and the “Data Exporter” shall be the Controller of such Personal Data. If necessary, Processor will ensure that its Sub-processor enters into Standard Contractual Clauses with Customer directly. The Standard Contractual Clauses will not apply to Personal Data that relates to individuals located outside of the EEA, or that is not transferred, either directly or via onward transfer, outside the EEA. The following provisions shall apply to an EEA Transfer which is subject to section 1(n)(ii) of this DPA:

Transfers from the UK to other countries. If the Processing of Personal Data by Processor includes transfers (either directly or via onward transfer) from the UK to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Processor for the lawful transfer of personal data (as defined in the UK GDPR) outside the UK (“UK Transfer”), then Controller and Processor will enter into the Standard Contractual Clauses. If and when the UK adopts its own version of the standard contractual clauses (“UK Clauses”), those standard contractual clauses shall be deemed executed by the Parties on the date of their adoption, replacing the standard contractual clauses between the Parties at that time with the UK Clauses.

In the event of an EEA Transfer or a UK Transfer which relies on the Standard Contractual Clauses and/or the UK Clauses, the Parties agree to supplement these with the following safeguards and representations, where appropriate:

AUTHORIZED AFFILIATES

Contractual Relationship. The Parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, in which case each Authorized Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Customer Processes Personal Data on the behalf of such Authorized Affiliates, thus qualifying them as the “Controller”. All access to and use of the Service by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.

Communication. Customer shall remain responsible for coordinating all communication with Processor under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

AUTHORIZED AFFILIATES

Data Protection Impact Assessment and Prior Consultation. Upon Customer’s reasonable request, Processor shall provide Customer, at Customer’s cost, with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR or the UK GDPR (as applicable) to carry out a data protection impact assessment related to Customer’s use of the Service, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Processor. Processor shall provide, at Customer’s cost, reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 11.1, to the extent required under the GDPR or the UK GDPR, as applicable.