Data Processing Agreement

This Data Processing Agreement, including its Schedules and Appendices (the “DPA”) forms part of the Agreement, which includes the services or products listed on Schedule 1 and Appendix 1 to the Standard Contractual Clauses (Schedule 3 to this DPA) to reflect the parties’ agreement as to the Processing of Personal Data.

Customer, by signing the Agreement, enters into this DPA on its behalf and, to the extent required under applicable Data Protection Laws and regulations, in the name and on behalf of its Customer Affiliate(s), if and to the extent Fishbowl, Inc. (“Personica”) Processes Personal Data for which such Customer Affiliate qualify as a Controller. With regard to the subject matter of this DPA, except where indicated otherwise, (i) the term “Customer” shall include Customer and Customer Affiliate, (ii) any capitalized and undefined term herein shall have the meaning ascribed to it in the Agreement and (iii) in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including but not limited to the Agreement, the provisions of this DPA shall prevail with regard to the parties’ data protection obligations for Personal Data of a Data Subject under the Data Protection Laws.

FOR A SIGNED VERSION OF THIS DPA, PLEASE EMAIL CLIENTSERVICES@PERSONICA.COM.

HOW THIS DPA APPLIES

If the Customer entity signing this DPA is a party to the Agreement, this DPA is an addendum to and forms part of the Agreement.

If the Customer entity signing this DPA has executed an Order Form with Personica or a Personica Affiliate pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order Form and applicable renewal Order Form(s), and the Personica entity that is party to such Order Form(s) is a party to this DPA.

If the Customer entity signing this DPA is neither a party to an Order Form nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity who is a party to the Agreement executed this DPA.

If the Customer entity signing this DPA is not a party to an Order Form nor a Master Subscription/Services Agreement directly with Personica but is instead a client indirectly via an authorized reseller of Personica products or services, this DPA is not valid and is not legally binding. Such entity should contact the authorized reseller to discuss whether an amendment to its agreement is necessary.

1. Definitions

1.1 “Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of an entity, whether through ownership of more than fifty percent (50%) of the voting interests of an entity or by written agreement.

1.2 “Agreement” means the services agreement, order form, or other written or electronic agreement between Personica and Customer for the purchase of any services or products from Personica.

1.3 “Authorized Affiliate” means any Customer Affiliate(s) which (a) is subject to the Data Protection Laws and (b) is permitted to use the products or services pursuant to the Agreement between Customer and Personica but has not signed its own Order Form with Personica and is not a “Customer” as defined under this DPA.

1.4 “CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.

1.5 “Customer” means the entity that executed the Agreement together with its Affiliates (for so long as they remain Affiliates) which have signed Order Forms.

1.6 “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

1.7 “Customer Data” has the meaning ascribed to “Customer Content” or “Consumer Data” in the Agreement; provided, that such data are electronic data and information submitted by or for Customer to the products or services. This DPA does not apply to content that is publicly available or provided by third parties and made available by Personica products or services, or to non-Personica products or services.

1.8 “Data Protection Act” means the United Kingdom Data Protection Act (2018).

1.9 “Data Protection Law” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and its member states, Switzerland, the United Kingdom, and the United States and its states, applicable to the Processing of Personal Data under the Agreement, including the GDPR, Data Protection Act, and CCPA.

1.10 “Data Subject” means the identified or identifiable natural person to whom Personal Data relates.

1.11 “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with respect to the Processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

1.12 “Personal Data” means any information relating to (a) an identified or identifiable natural person and, (b) an identified or identifiable household or legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws), where for each (a) or (b), such data are Customer Data.

1.13 “Process,” “Processes,” or “Processing” means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as access, collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.

1.14 “Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable a “service provider” as the CCPA defines and interprets that term.

1.15 “Restricted Transfer” means the transfer to or amongst Personica or one or a Subprocessor of Personal Data from the EEA to a jurisdiction that is not deemed by the European Commission to have “adequate safeguards” pursuant to the GDPR, Art. 45 (or any implementing legislation of a Member State of the EEA).

1.16 “Special Categories of Personal Data” means Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership.

1.17 “Standard Contractual Clauses” means the standard contractual clauses for the transfer of personal data from an EU Controller to Processors established in third countries, as approved by the European Commission in Decision 2010/87/EU (or any successors thereto) available here: Standard Contractual Clauses.

1.18 “Subprocessor” means any Processor appointed by Personica to Process Personal Data.

2. PROCESSING OF PERSONAL DATA.

2.1 Roles of the Parties. The parties acknowledge and agree that regarding the Processing of Personal Data, Customer is the Controller and Personica is the Processor who may engage Subprocessors pursuant to the requirements set forth in Section 4 of this DPA.

2.2 Customer’s Processing of Personal Data. Customer shall, in its use of Personica products or services, Process Personal Data in accordance with the requirements of Data Protection Laws, including any applicable requirement to provide notice to Data Subjects of the use of Personica as Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data, and Customer acknowledges that its use of Personica’s products or services will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.

2.3 Personica’s Processing of Personal Data. Personica certifies that it understands the contractual and legal limits placed on it under the Agreement, the DPA, and the Data Protection Laws. Personica shall treat Personal Data as Confidential Information (as defined in the Agreement) and shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions for the following purposes: (a) Processing in providing services and only in accordance with the Agreement and applicable Order Form(s), (b) Processing initiated by Authorized Users in their use of Personica’s products and services, and (c) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the Agreement and Data Protection Laws. Personica shall not: (x) “sell” any Personal Data as the CCPA defines the term “sell,” (y) retain, use, or disclose any Personal Data for any purpose other than purposes in Section 2.3(a) through (c), or (z) retain, use, or disclose any Personal Data apart from the purposes described in the Agreement and this DPA.

2.4 Details of Processing. The subject matter of Processing of Personal Data by Personica is the provision of the products or services pursuant to the Agreement. Personica’s Platform Privacy Policy and/or Schedule 2 to this DPA further clarifies 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.

3. RIGHTS OF DATA SUBJECTS.

3.1 Data Subject Request. Personica shall, to the extent legally permitted, promptly notify Customer if Personica receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to automated individual decision making, each such request being a “Data Subject Request.” Considering the nature of the Processing, Personica shall assist Customer by appropriate technical and organizational measures, as far as this is possible, for the fulfillment of Customer’s obligations to respond to a Data Subject Request under Data Protection Laws. In addition, to the extent Customer, in its use of the products or services, does not have the ability to address a Data Subject Request, Personica shall upon Customer’s request provide Commercially Reasonable Efforts to assist Customer in responding to such Data Subject Request, to the extent Personica is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from Personica’s provision of such assistance.

4. SUBPROCESSORS.

4.1 Appointment of Subprocessors. Customer hereby authorizes and instructs Personica to engage Subprocessor(s) to perform or undertake any duty or obligation Personica may have under the Agreement and this DPA in the Processing or transferring of Personal Data, including a Personica Affiliate and any Subprocessor already engaged by Personica as set forth in Section 4.3 of this DPA.

4.2 Contractual Requirements. With respect to each Subprocessor, Personica shall:

4.2.1.    Include in the contract between Personica and the Subprocessor terms which offer an equivalent level of protection for Personal Data as those set out in this DPA as appropriate to the nature of the services performed by the Subprocessor;

4.2.2.    Ensure that the Standard Contractual Clauses are at all relevant times incorporated into the Agreement between the Personica and the Subprocessor to the extent the Agreement involves a Restricted Transfer.

4.3 List of Current Subprocessors & Notification of New Subprocessors. Personica shall make available to Customer a list of Personica’s current Subprocessors for the products and services under the Agreement. Personica shall provide notification of a new Subprocessor to Customer before authorizing such Subprocessor to Process Personal Data via Personica.

4.4 Objection to New Subprocessors. Customer may object in good faith on grounds related to data protection to Personica engaging a Subprocessor by notifying Personica promptly in writing within five (5) business days after Personica’s notice of the new Subprocessor after which time Customer waives any right to object to the use of any such proposed Subprocessor. If Customer does timely object in writing to the new Subprocessor, Personica will use Commercially Reasonable Efforts to make available to Customer a change in the products or services or recommend a commercially reasonable change to Customer’s configuration or use of the products or services to avoid Processing of Personal Data by the objected-to new Subprocessor without unreasonably burdening the Customer. If Personica is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Order Form(s) with respect only to those services or products which cannot be provided by Personica without the use of the objected-to new Sub-processor by providing written notice to Personica.

4.5 Liability. Be liable for the acts and omissions of its Subprocessor to the same extent Personica would be liable if performing the Processing directly under the terms of this DPA, except as otherwise set forth in the Agreement.

5. SECURITY

5.1 Security Controls. Personica shall, 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, implement appropriate technical and organizational measures that are designed to ensure a level of security, confidentiality and integrity of Personal Data appropriate to the risk as set forth in Personica’s Platform Privacy Policy.

5.2 Personica Personnel.

5.2.1    Confidentiality. Personica shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilties and have executed written confidentality agreements.

5.2.2.   Reliability. Personica shall take Commercially Reasonable Efforts to ensure the reliability of any Personica personnel engaged in the Processing of Personal Data.

5.2.3.   Limitatiuon of Access. Personica shall ensure that Personica’s access to Personal Data is limited to those personnel performing services in accordance with the Agreement.

5.2.4.   Data Protection Officer. Personica has appointed a data protection officer. The appointed person may be contacted at the information provided in Personica’s Platform Privacy Policy.

6. CLIENT DATA INCIDENT MANAGEMENT & NOTIFICATION.

6.1 Policies. Personica maintains security incident management policies and procedures specified in Personica’s Platform Privacy Policy.

6.2 Notification. Personica shall notify Customer, without undue delay, upon becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data transmitted, stored or otherwise Processed by Personica or its Subprocessors of which Personica becomes aware (a “Customer Data Incident”). Personica shall make Commercially Reasonable Efforts to provide Customer with sufficient information which allows the Customer to meet any obligations to report a Customer Data Incident under Data Protection Laws.  Notification(s) of Customer Data Incidents, if any, will be delivered to one or more of Customer’s administrators by any means Personica selects, including via email.  It is Customer’s responsibility to ensure Customer’s administrators maintain accurate contact information with Personica and secure transmission at all times.  The obligations herein shall not apply to Customer Data Incidents that are caused by Customer or Customer’s Authorized Users.

7. RETURN & DELETION OF CLIENT DATA

7.1 Personica Obligation. Personica shall not retain any Personal Data for any purpose outside of the Agreement or this DPA. Personica shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in Personica’s Platform Privacy Policy. A certificate of deletion shall only be provided upon Customer’s request.

8. AUTHORIZED AFFILIATES

8.1 Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, Customer enters into this DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Personica and each such Authorized Affiliate subject to the provisions of the Agreement and this Section 8 and Section 10.2. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement.  For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to this DPA.  All access to and use of Personica’s products or services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.

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

8.3 Rights of Authorized Affiliates.  Where an Authorized Affiliate becomes a party to this DPA with Personica, it shall to the extent required under applicable Data Protection Laws be entitled to exercise the rights and seek remedies under this DPA, subject to the following:

8.3.1.   Except where applicable Data Protection Laws require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Personica directly by itself, the parties agree that (a) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of Authorized Affiliate(s), and (b) the Customer that is the contracting party under the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for itself and all of its Authorized Affiliates together.

8.3.2.   The parties agree that the Customer that is the contracting party to the Agreement shall, when carrying out an onsite audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on Personica and its Subprocessors by combining, to the extent reasonably possible, several audit requests carried out on behalf of itself and all of its Authorized Affiliates into one single audit.

9. EUROPEAN SPECIFIC PROVISIONS

9.1 GDPR. Personica will Process Personal Data in accordance with the GDPR requirements directly applicable to Personica’s provision of products or services.

9.2 Data Protection Act. Personica will Process Personal Data in accordance with the Data Protection Act requirements directly applicable to Personica’s provision of products or services.

9.3 Audits & Certifications. The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be in accordance with the following specifications:

9.3.1.   At Customer’s sole cost and expense and upon its request, and subject to the confidentiality obligations set forth in the Agreement, Personica shall make available to Customer that is not a competitor of Personica (or Customer’s independent, third-party auditor that is not a competitor of Personica) information regarding Personica’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits set forth in Personica’s Platform Privacy Policy or the Agreement to the extent Personica makes them generally available to its Customers. Customer may contact Personica in accordance with the “Notice” Section of the Agreement to request an onsite audit of the procedures relevant to the protection of Personal Data.

9.3.2.   Before the commencement of any such onsite audit, Customer and Personica shall mutually agree upon the scope, timing, and duration of the audit. Customer shall promptly notify Personica with information regarding any noncompliance discovered during an audit.

9.3.3.   Customer shall not request nor conduct more than one (1) time per calendar year during the term of any applicable Order Form.

9.4 Data Transfer Mechanisms.

9.4.1.   Authorization. Customer hereby authorizes and instructs Personica (and authorizes Personica to instruct each Subprocessor) to transfer Personal Data to any jurisdiction, provided such transfer complies with this DPA.

9.4.2.   Privacy Shield. Personica’s EU-US, UK-US, and Swiss-US Privacy Shield Framework and any framework that may replace the above in whole or in part (the “Framework”) self-certification applies to all of its products and services (the “Privacy Shield Services”).

9.4.3.   Standard Contractual Clauses. Customer and each relevant Authorized Affiliate (as “data exporter”), and Personica (as “data importer”) will, as appropriate, enter into the Standard Contractual Clauses of Schedule 3 to this DPA (the “SCC Services”) If the Framework is found to be an inadequate basis to transfer Personal Data from the EEA, UK, or Switzerland to the US then the SCC shall control the transfer of such Personal Data.

9.4.4.   Other Locations. For jurisdictions other than those subject to the GDPR or Data Protection Act, Personica will rely on approved transfer mechanisms under applicable Data Protection Law or as approved by a relevant data protection authority or other similar government agency.

9.4.5.   Order of Precedence. For transfer subject to the GDPR or the Data Protection Act, if more than one transfer mechanism applies to the products or services, the transfer of Personal Data will be subject to a single transfer mechanism in accordance with the following order of precedence: (a) Section 9.4.2 then (b) Section 9.4.3.

10. GENERAL TERMS

10.1 Authority. Customer represents and warrants that it is and will at all relevant times remain duly and effectively authorized to give the instructions set out in this DPA on behalf of itself and each Authorized Affiliate and that such instructions will not violate Data Protection Laws.

10.2 Limitation of Liability. Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPA’s between Authorized Affiliates and Personica, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together. For the avoidance of doubt, Personica’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and all DPAs shall apply in the aggregate for all claims under both the Agreement and all DPAs established under the Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.

10.3 No Third-Party Beneficiaries. Except as set forth in the Agreement or this DPA, the parties do not confer any rights or remedies upon any person other than the parties to this DPA.

10.4 Third-Party Notices. If a third-party sends Personica a demand for Customer Data, Personica will, to the extent permitted by law, attempt to redirect the third-party to request that data directly from Customer. As part of this effort, Personica may provide Customer’s basic contact information to the third-party and such provision of information by Personica shall not be contrary to the Agreement or this DPA. If compelled to disclose Customer Data to a third-party, then Personica will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy, unless prohibited by applicable law.

List of Schedules

Schedule 1: Transfer Mechanisms for European Data Transfers
Schedule 2: Details of the Processing
Schedule 3: Standard Contractual Clauses

DATA PROCESSING AGREEMENT: Schedule 1
Transfer Mechanisms for European Data Transfers

      1. ADDITIONAL TERMS FOR EU-U.S. AND SWISS-U.S. PRIVACY SHIELD SERVICES.

1.1.    Fishbowl, Inc. self-certifies to and complies with the Framework, as administered by the US Department of Commerce, and Personica shall ensure that it maintains its self-certification to and compliance with the Framework with respect to the Processing of Personal Data that is transferred from the European Economic Area, the United Kingdom, and/or Switzerland to the United States.

      1. ADDITIONAL TERMS FOR SCC SERVICES.

2.1.    Customers covered by the Standard Contractual Clauses. The Standard Contractual Clauses and the additional terms specified in this Section 2 apply to (i) Customer which is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom and, (ii) its Authorized Affiliates. Any such entity shall be a “data exporters.”

2.2.    Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to Personica for the Processing of Personal Data. Personica and Customer shall agree on any additional or alternate instructions in a separate writing. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Agreement and applicable Order Form(s); (b) Processing initiated by Authorized Users in their use of the SCC Services and (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.

2.3.    Appointment of new Sub-processors and List of current Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that (a) Personica’s Affiliates are Subprocessors; and (b) Personica and Personica’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the SCC Services. Personica shall make available to Customer the current list of Sub-processors in accordance with Section 4.3 of this DPA

2.4.    Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that Personica may engage new Sub-processors as described in Sections 4.3 and 4.4 of the DPA.

2.5.    Copies of Sub-processor Agreements. The parties agree that the copies of the Sub-processor agreements that must be provided by Personica to Customer pursuant to Clause 5(g) of the Standard Contractual Clauses may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by Personica beforehand; and, that such copies will be provided by Personica, in a manner to be determined in its discretion, only upon request by Customer.

2.6.    Audits and Certifications. The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the following specifications: Upon Customer’s request, and subject to the confidentiality obligations set forth in the Agreement, Personica shall make available to Customer that is not a competitor of Personica (or Customer’s independent, third-party auditor that is not a competitor of Personica) information regarding the Personica’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits performed under Personica’s information security efforts to the extent Personica makes them generally available to its clients. Customer may contact Personica in accordance with the “’Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse Personica for any time expended for any such on-site audit at the Personica’s then-current professional services rates, which are available to Customer upon request. Before the commencement of any such on-site audit, Customer and Personica shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, considering the resources expended by Personica. Customer shall promptly notify Personica with information regarding any noncompliance discovered during an audit.

2.7.    Certification of Deletion. The parties agree that the certification of deletion of Personal Data (described in Clause 12(1) of the Standard Contractual Clauses) is available only upon Customer’s request.

2.8.    Conflict. In the event of any conflict or inconsistency between the body of this DPA and any of its Schedules (not including the Standard Contractual Clauses) and the Standard Contractual Clauses in Schedule 3, the Standard Contractual Clauses shall prevail.

DATA PROCESSING AGREEMENT: Schedule 2
Details of the Processing

Nature and Purpose of Processing

Personica will Process Personal Data as necessary to provide the products and perform the services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the products and services.

Duration of Processing

Subject to Section 7 of the DPA, Personica will Process Personal Data for the duration of the Agreement or applicable Order Form, unless otherwise agreed upon in writing.

Categories of Data Subjects

Customer may submit Personal Data to the products or services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include data (Personal Data and non-Person Data) relating to the following categories of Data Subjects:

      • Prospects, customers, business partners, and vendors of Customer (who are natural persons)
      • Employees, volunteers, or other contact persons of Customer’s prospects, customers, business partners, and vendors.
      • Employees, volunteers, agents, or advisors of Customer (who are natural persons)
      • Customer’s Authorized Users

Types of Personal Data

      • First and last name
      • Title
      • Position
      • Employer
      • Contact information (company, email, phone, physical business address)
      • ID data
      • Professional life data
      • Personal life data
      • Localisation data

DATA PROCESSING AGREEMENT: Schedule 3
Standard Contractual Clauses

The Standard Contractual Clauses listed below and found here shall apply to (a) Customers which are subject to the data protection laws of the European Union, the European Economic Area and/or their member states, Switzerland, and the United Kingdom and (b) its Authorized Affiliates. For purposes of the Standard Contractual Clauses, the above entities are “data exporters.”

*    *    *

Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection [This opening recital is deleted if these Clauses are not governed by the law of a member state of the EEA.]

Name of the data exporting organisation:

The organization named in an Order Form or Agreement applicable to the particular transfer of Personal Data.

Address:

Tel.:____________________; fax: ___________________; e-mail: ________________________

Other information needed to identify the organisation

……………….……………………………………………
(the data exporter)

And

Name of the data importing organisation:  FISHBOWL, INC.

Address: 44 Canal Center Plaza, Suite 500, Alexandria, VA 22314

Tel.: 800.836.2818; fax: n/a ; e-mail: privacy@personica.com

Other information needed to identify the organisation:

…………………………………FISHBOWL, INC.………………………………
(the data importer)

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

(a)    ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of “personal data” is expanded to include those data” are added.]

(b)    ‘the data exporter’ means the controller who transfers the personal data;

(c)    ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC” are deleted.]

(d)    ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e)    ‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f)    ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

      1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
      2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
      3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
      4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a)    that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b)    that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c)    that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d)    that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e)    that it will ensure compliance with the security measures;

(f)    that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “within the meaning of Directive 95/46/EC” are deleted.]

(g)    to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h)    to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i)    that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j)    that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a)    to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b)    that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c)    that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d)    that it will promptly notify the data exporter about:

(i)    any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii)    any accidental or unauthorised access, and

(iii)    any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e)    to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f)    at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g)    to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h)    that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i)    that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j)    to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

      1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
      2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

      1. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

      1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a)    to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b)    to refer the dispute to the courts in the Member State in which the data exporter is established.

      1. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

      1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
      2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
      3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

      1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
      2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
      3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
      4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

      1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
      2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

The data exporter is:

Data Exporter is the legal entity specified in Section 2.1 of Schedule 1 of the DPA.

Data importer

The data importer is:

FISHBOWL, INC.

Data subjects

The personal data transferred concern the following categories of data subjects:

Data exporter may submit Personal Data to the SCC Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

      • Prospects, customers, business partners and vendors of data exporter (who are natural persons)
      • Employees or contact persons of data exporter’s prospects, customers, business partners and vendors
      • Employees, agents, advisors, freelancers of data exporter (who are natural persons)
      • Data exporter’s Authorized Users authorized by data exporter to use the SCC Services

Categories of data

The personal data transferred concern the following categories of data:

Data exporter may submit Personal Data to the SCC Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

      • First and last name
      • Title
      • Position
      • Employer
      • Contact information (company, email, phone, physical business address)
      • ID data
      • Professional life data
      • Personal life data
      • Localisation data

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data:

The Agreement prohibits the import of special categories of data into the Services. However, if data exporter chooses to submit special categories of data to the SCC Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data.

Processing operations

The personal data transferred will be subject to the following basic processing activities:

The objective of Processing of Personal Data by data importer is the performance of the SCC Services pursuant to the Agreement.

Products and services

The products and services subject to the Standard Contractual Clauses:

The Services as described in the Agreement or one or more Order Form(s).

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):

Please review our Security Statement for a description of the technical and organizational measures Personica uses to safeguard Personal Data.