SaaS Subscription Agreement
This SaaS Agreement (“Agreement“) is entered into by and between Digify set forth below (“Company“) and the entity or person placing an order for or accessing any Services (“Customer” or “you”). If you reside in the United States and Canada, you are entering into this contract with Digify, Inc. If you reside outside of the United States and Canada you are entering into this contract with Digify Pte Ltd, a company registered in Singapore. If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Company pursuant to any Company ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)“) and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term“).
Modifications to this Agreement: From time to time, Company may modify this Agreement. Unless otherwise specified by Company, changes become effective for Customer upon renewal of Customer’s current Subscription Term (as defined below) or entry into a new Order Form. Company will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If the Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
Subject to the terms of this Agreement and during the Subscription Term specified in an applicable order, Company will use commercially reasonable efforts to provide Customer the Services in accordance with this Agreement and the Service Level Terms at Schedule 1. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account.
If Customer receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription“), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of seven (7) days or such other period granted by Company (the “Trial Period“). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. Company has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, Company WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not (a) use the Services in excess of the scope of use specified in an applicable Order Form, or (b) directly or indirectly: reverse engineer the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; (c) use the Services or any Software for timesharing or service bureau purposes; or (d) remove any proprietary notices or labels.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services (including but not limited to content Customer uses in conjunction with the Services). Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”), other than the provided equipment (if any) specified in Exhibit A. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
The Service is subject to the scope of use specified in the applicable Order Form. Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by Customer or otherwise used through its Account. Customer agrees not to use or permit the use of the Service: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (c) in any manner that is likely to damage, disable, overburden, or impair the Service or interfere in any way with the use or enjoyment of the Service by others; (d) to introduce any Malware or other malicious activity in Customer’s use of the Service; (e) in violation of any export law or regulation; or (f) in any way that constitutes or encourages conduct that could constitute a criminal offense.
Each party acknowledges it is responsible to comply with all applicable requirements of the General Data Protection Regulation (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time. The Parties acknowledge that:
If the Company processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer is the data controller and the Company is the data processor for the purposes of the GDPR;
The Data Processing Addendum attached hereto in Schedule 2 to this Agreement sets out the parties’ obligations under the GDPR; and
The personal data may be transferred or stored outside the EU or the country where the Customer and the authorized users are located in order to carry out the Service and the Company’s other obligations under this Agreement.
Company may at any time suspend any use of the Service and/or remove or disable any content as to which Company reasonably and in good faith believes is in violation of this Agreement. Company agrees to provide Customer with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Service or any third party, in which case Company will notify Customer to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter.
CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS.
Either party has disclosed, or may disclose, business, technical or financial information relating to its business (“Confidential Information.”) Confidential Information of Company includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data.”) A party receiving confidential information (“Receiving Party”) from the party disclosing Confidential Information (“Disclosing Party”) agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Confidential Information. The obligations of confidentiality stated in this section shall survive for five (5) years from the last date Customer uses the Service.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information that: (a) the information is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required to be disclosed by law.
Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (a) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made are a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement, including to make required court filings; or (c) in confidence, to legal counsel, consultants, accountants, banks, and financing sources, and their advisors; (d) the terms and conditions of this Agreement in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction; or (e) to respond to an emergency which Company believes in the good faith should be disclosed to assist in preventing the death or serious bodily injury of any person or material damage to property.
Company shall own and retain all right, title and interest in and to (a) the Services and Software, including all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services, and (c) all intellectual property rights related to any of the foregoing.
Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and development of related systems and technologies.
PAYMENT OF FEES
Customer will pay Company the fees specified in the applicable Order Form (the “Fees”). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
Fees are due and payable thirty (30) days after the date of the invoice, unless (a) Customer is paying via Credit Card or (b) otherwise specified in the applicable Order Form. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income. All fees are non-cancelable and non-refundable, except where expressly set forth in Section 7 (IP Indemnification).
If Customer is paying via Credit Card, and agreeing to purchase any Services, Customer hereby authorizes Company (or its designee) to automatically charge Customer’s Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer’s use of the Services and may include subscription fees for the remainder of Customer’s applicable billing period and overage fees for the prior month.
RENEWALS, TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is effective as of the Effective date. It shall remain in effect unless terminated; provided that this Agreement shall automatically terminate upon the earlier of (a) the termination or expiration of all Subscription Terms or (b) termination as provided in Section 5.2 below. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional period of the initial Subscription Term specified on the order form unless either party gives the other written notice of termination before the expiration of the then-current Subscription Term.
Either party may terminate this if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured following thirty (30) days written notice to the other party. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Company warrants that (a) the Services will confirm with the applicable documentation, and (b) the Services will be delivered in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company will defend Customer against any third party claim that the Service infringes a patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Customer’s actions) (“Claim Against Customer“), and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, Company will have no liability to Customer under this Section 7.1 for any Claim Against Customer that arises out of: (a) any unauthorized use, reproduction, or distribution of the Service by Customer; (b) use of the Service in combination with any other software or equipment not supported by Company; or (c) any modification or alteration of the Service by anyone other than Company without the written approval of Company. In the event of a Claim Against Customer pursuant to this Section 7.1, Company may (at Company’s option and expense): (i) obtain for Customer the right to continue using the Service; (ii) modify the Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Company in its sole discretion), terminate this Agreement and refund Customer on a pro-rated basis any Fees pre-paid to Company for the corresponding unused period of the Service.
As a condition of receiving an indemnification under this Agreement, Customer will provide Company with (i) prompt written notice of the claim; (ii) complete control over the defense and settlement of the claim (provided, that the Company will not settle any claim without the Customer’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Customer from all liability pertaining to such claim); and (iii) such assistance in connection with the defense and settlement of the claim, at the Customer’s expense, as the Company may reasonably request.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Press Releases. Neither party will issue any press release or similar publicity regarding the parties’ relationship under this Agreement without the other’s written approval.
Identification of Customer. Company may identify Customer, by name and by logo, as a customer of the Services on Company’s website and other marketing materials.
Case Study. Provided Customer is satisfied with the Services, Company may develop a case study for public dissemination and marketing use by Company describing the benefits Customer has derived from the Services. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party shall be liable to the other for any delay or failure to perform any of the obligations set forth under this Agreement due to any act of God and/or force majeure causes beyond its reasonable control, including but not limited to hurricane, fire, flood, earthquake, terrorism or similar acts. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any disputes hereunder will be resolved via binding arbitration in San Francisco, California under the rules of the American Arbitration Association.
Service Level Terms (applies to Enterprise plan only)
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
The scheduled time for maintenance is 9 p.m. to 3 a.m. PST/PDT, and may be used by Company with no advance notification to Customer. We may expand these scheduled times provided that we notify you at least one day in advance. In addition, in the event that we in our sole discretion determine that any unscheduled maintenance is necessary, we will use commercially reasonable efforts to notify you.
The rights and remedies granted under this SLA apply to you only if you are a current subscriber of the Services. This SLA describes your sole remedy, and our entire obligation, if we fail to satisfy our uptime guarantee. This SLA does not diminish or override the disclaimer of warranties in the Agreement to which this SLA is attached (except as expressly stated therein).
Data Processing Agreement
This Data Processing Agreement with EU Standard Contractual Clauses (Processors), (the “DPA”) forms part of the Customer Terms of Service found at https://digify.com/legal, unless Customer has entered into a superseding written Enterprise master service agreement between , Digify Inc. (together, “Company”) and the customer agreeing to these terms (the “Agreement”).
- Details of Processing. Details of Company’s role as a processor of Personal Data under the Agreement are set forth below:
- Subject Matter of the Personal Data Processing: The provision of the Services by Company to Customer.
- Duration of the Personal Data Processing: The Term, and any period after the Term prior to Company’s deletion of Customer Data.
- Nature and Purpose of the Personal Data Processing: To enable Customer to receive and Company to deliver the Services and other obligations as specified in the Agreement.
- Categories of Personal Data: To the extent the Customer Data contains Personal Data, it may consist of end users identifying information and organization data as well as documents, images and other content or data in electronic form stored or transmitted by End Users via the Services.
- Data Subjects: To the extent the Customer Data contains Personal Data, it may concern Customer’s End Users, as well as any individuals collaborating or sharing with these End Users.
- Application. This DPA applies as follows:
- the EU Standard Contractual Clauses apply to data processed by the Services as this term is defined in the Agreement, and future variations of the Services; and
- the “GDPR Addendum” attached hereto as Exhibit B, applies solely to the extent required by EU Data Protection Law, and will take effect on May 25, 2018.
- Effect of DPA. If a provision in this DPA conflicts with a provision in the Agreement, then this DPA will control. The Agreement will remain in full force and effect and will be unchanged except as modified by this DPA. This DPA and the EU Standard Contractual Clauses will terminate automatically upon expiration or termination of the Agreement.
Commission Decision C(2010)593
EU 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
Name of the data exporting organization: The Customer that is a party to the Digify Services Agreement with Digify Inc
(the “Data Exporter”)
Name of the data importing organization: Digify, Inc.
Address: 350 Townsend Street #746, San Francisco, CA 94107 USA
(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.
- “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;
- “the Data Exporter” means the controller who transfers the personal data;
- “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;
- “the Sub-Processor” means any processor engaged by the Data Importer or by any other Sub-Processor of the Data Importer who agrees to receive from the Data Importer or from any other Sub-Processor of the Data Importer personal data exclusively intended for processing activities to be carried out on behalf of the Data Exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- “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;
- “technical and organizational security measures” means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The Data Subject can enforce against the Data Exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The Data Subject can enforce against the Data Importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the Data Exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the Data Exporter, in which case the Data Subject can enforce them against such entity.
- The Data Subject can enforce against the Sub-Processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the Data Exporter, in which case the Data Subject can enforce them against such entity. Such third-party liability of the Sub-Processor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a Data Subject being represented by an association or other body if the Data Subject so expressly wishes and if permitted by national law.
Obligations of the Data Exporter
The Data Exporter agrees and warrants:
- 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;
- 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;
- that the Data Importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- 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;
- to forward any notification received from the Data Importer or any Sub-Processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the Data Exporter decides to continue the transfer or to lift the suspension;
- to make available to the Data Subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for Sub-Processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a Sub-Processor providing at least the same level of protection for the personal data and the rights of Data Subject as the Data Importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the Data Importer
The Data Importer agrees and warrants:
- 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;
- 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;
- that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the Data Exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
- any accidental or unauthorized access; and
- any request received directly from the Data Subjects without responding to that request, unless it has been otherwise authorized to do so;
- 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;
- 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;
- to make available to the Data Subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the Data Subject is unable to obtain a copy from the Data Exporter;
- that, in the event of sub-processing, it has previously informed the Data Exporter and obtained its prior written consent;
- that the processing services by the Sub-Processor will be carried out in accordance with Clause 11;
- to send promptly a copy of any Sub-Processor agreement it concludes under the Clauses to the Data Exporter.
- The parties agree that any Data Subject, who has suffered damage as a result of any breach of the obligations, referred to in Clause 3 or in Clause 11 by any party or Sub-Processor is entitled to receive compensation from the Data Exporter for the damage suffered.
- If a Data Subject is not able to bring a claim for compensation in accordance with paragraph 1 against the Data Exporter, arising out of a breach by the Data Importer or his Sub-Processor of any of their obligations referred to in Clause 3 or in Clause 11, because the Data Exporter has factually disappeared or ceased to exist in law or has become insolvent, the Data Importer agrees that the Data Subject may issue a claim against the Data Importer as if it were the Data Exporter, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract of by operation of law, in which case the Data Subject can enforce its rights against such entity. The Data Importer may not rely on a breach by a Sub-Processor of its obligations in order to avoid its own liabilities.
- If a Data Subject is not able to bring a claim against the Data Exporter or the Data Importer referred to in paragraphs 1 and 2, arising out of a breach by the Sub-Processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, the Sub-Processor agrees that the Data Subject may issue a claim against the data Sub-Processor with regard to its own processing operations under the Clauses as if it were the Data Exporter or the Data Importer, unless any successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law, in which case the Data Subject can enforce its rights against such entity. The liability of the Sub-Processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- 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:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the Data Exporter is established.
- The parties agree that the choice made by the Data Subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- 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.
- The parties agree that the supervisory authority has the right to conduct an audit of the Data Importer, and of any Sub-Processor, which has the same scope and is subject to the same conditions as would apply to an audit of the Data Exporter under the applicable data protection law.
- The Data Importer shall promptly inform the Data Exporter about the existence of legislation applicable to it or any Sub-Processor preventing the conduct of an audit of the Data Importer, or any Sub-Processor, pursuant to paragraph 2. In such a case the Data Exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the Data Exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
- The Data Importer shall not subcontract any of its processing operations performed on behalf of the Data Exporter under the Clauses without the prior written consent of the Data Exporter. Where the Data Importer subcontracts its obligations under the Clauses, with the consent of the Data Exporter, it shall do so only by way of a written agreement with the Sub-Processor which imposes the same obligations on the Sub-Processor as are imposed on the Data Importer under the Clauses. Where the Sub-Processor fails to fulfill its data protection obligations under such written agreement the Data Importer shall remain fully liable to the Data Exporter for the performance of the Sub-Processor’s obligations under such agreement.
- The prior written contract between the Data Importer and the Sub-Processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the Data Subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the Data Exporter or the Data Importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law. Such third-party liability of the Sub-Processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the Data Exporter is established.
- The Data Exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the Data Importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the Data Exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
- The parties agree that on the termination of the provision of data-processing services, the Data Importer and the Sub-Processor shall, at the choice of the Data Exporter, return all the personal data transferred and the copies thereof to the Data Exporter or shall destroy all the personal data and certify to the Data Exporter that it has done so, unless legislation imposed upon the Data Importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the Data Importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The Data Importer and the Sub-Processor warrant that upon request of the Data Exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
- Sub-processing. The data importer may engage other companies to provide limited parts of the Services (including support services) on the data importer’s behalf, and the data exporter consents to the data importer subcontracting the processing of personal data to such sub-processors as described in the Clauses. The data importer will ensure that any sub-processor will only access and use personal data to provide the Services as set forth in a written agreement between the data importer and the sub-processor. The data exporter acknowledges that any requirements applicable to the data importer under the Clauses in respect of agreements with sub-processors shall be satisfied in full provided that the sub-processing agreement between the data importer and the sub-processor provides at least the level of data protection required under the Agreement.
- Liability. The Clauses shall be subject to the limitations and exclusions of liability contained in the “Limitation of Liability” section of the Master Services Agreement or Terms of Service, such that the total liability of the data importer and Digify Pte Ltd, in aggregate, shall not exceed the limitations set out in the Agreement. The data exporter shall not be entitled to recover from both the data importer and Digify Pte Ltd in respect of the same loss.
Appendix 1 to the EU Standard Contractual Clauses
This Appendix forms part of the Clauses.
The Data Exporter is the customer to the Agreement, as amended by the DPA.
The Data Importer is Digify, Inc. (“Company”), a provider of document security services for businesses. Company provides a website, software and mobile applications that allow people to secure, protect and track files after sending. Company’s service may also be accessed by Application Programming Interfaces (APIs).
The personal data transferred concern the Data Exporter’s and Data Exporter’s affiliates’ end users including employees, consultants and contractors of the Data Exporter, as well as any individuals collaborating or sharing with these end users using the services provided by Data Importer.
Categories of data
The personal data transferred concern end users identifying information and organization data as well as documents, images and other content or data in electronic form stored or transmitted by end users via Data Importer’s services.
The personal data transferred will be subject to the following basic processing activities (please specify):
Scope of Processing.
The scope and purposes of processing the Data Exporter’s personal data is described in the DPA to which these Clauses are annexed as well as the Agreement between Data Exporter and Data Importer.
Term of Processing.
The term for data processing will be the term set forth in the applicable Agreement.
Data Deletion or Return.
Upon expiration or termination of the Agreement, Data Importer agrees to delete or return Data Exporter’s personal data from Data Importer’s service, in accordance with the terms and conditions of the Agreement.
Access to Data.
Data Exporter may designate an administrator who will have the ability to access Data Exporter’s personal data in accordance with the Agreement. In addition, an individual end user of Data Exporter will have the ability to access any of such end user’s personal data associated with the specific account through which such end user accesses and uses the service in accordance with the functionality of the service, the Agreement and the agreement between Company and the individual Data Exporter end user.
Data Importer may engage other companies to provide parts of the service on Data Importer’s behalf. Data Importer will ensure that any such Sub-Processors will only access and use any personal data of Data Exporter to provide the service in accordance with the Agreement.
Appendix 2 to the EU Standard Contractual Clauses
Description of the technical and organizational security measures implemented by the Data Importer in accordance with
Clauses 4(d) and 5(c) (or document/legislation attached):
Data Privacy Contact
The data privacy officer of the Data Importer can be reached at firstname.lastname@example.org
The Data Importer has implemented and will maintain appropriate administrative, technical and physical safeguards to protect personal data.
- Access Controls. Data Importer will implement suitable measures in order to prevent unauthorized persons from gaining access to the data processing equipment.
- Access Control to Data. Data Importer commits that persons entitled to use the data processing system will only access the customer personal data within the scope and to the extent covered by the respective access permission.
- User Control. Data Importer will implement suitable measures to prevent its data processing systems from being used by unauthorized persons. Further, Data Importer will implement suitable measures to prevent unauthorized reading, copying, or deletion of the stored data.
- Transmission control. Data Importer will secure the Customer Personal Data processed through the use of the Processor’s service.
- Organizational control. Data Importer will maintain its internal organization in a manner that meets the requirements of Data Protection Legislation.
- Instructional control. The Customer Personal Data transferred by the Data Exporter to the Data Importer may only be processed in accordance with the instructions of the Controller.
Data Importer may update these security measures from time to time, provided however that Data Importer will notify Data Exporter if Data Importer updates the security measures in a manner that materially diminishes the administrative, technical or physical security features described therein.
Digify GDPR Addendum
- Company’s Use of Sub-Processors. Customer consents to Company’s appointment of Subcontractors, including
Sub-processors, to perform the Services. Where a Sub-processor will process Personal Data which is subject to EU Data Protection Laws, Company will ensure that the Sub-processor is subject to contractual obligations regarding Personal Data which satisfy the requirements of EU Data Protection Laws.
Company’s subprocessors are stated here, and may be updated from time to time at https://digify.com/legal.html:
Corporate Name Corporate Location Function Amazon Web Services, Inc United States of America Infrastructure Chargebee, Inc United States of America Billing Facebook, Inc United States of America Marketing Google LLC United States of America Marketing Intercom, Inc United States of America Customer Support LinkedIn Corporation United States of America Marketing Mailchimp United States of America Email Service Microsoft Corporation United States of America Marketing PayPal Holdings United States of America Billing Pipedrive, Inc United States of America Sales and Support Stripe, Inc United States of America Billing Wootric, Inc United States of America Customer Support Zapier, Inc United States of America Information Parser
Company will remain liable for all acts or omissions of its Subcontractors or Sub-processors, and for any subcontracted obligations.
Company may add or remove Sub-processors from time to time. If Customer objects to a change, it will provide Company with notice of its objection to email@example.com including reasonable detail supporting Customer’s concerns within sixty days of receiving notice of a change from Company or, if Customer has not subscribed to receive such notice, within sixty days of Company publishing the change. Company will then use commercially reasonable efforts to review and respond to Customer’s objection within thirty days of receipt of Customer’s objection. Company’s response to Customer’s objection will include, at a minimum, reasonable accommodations, if any, that Customer or Company can take to limit or prevent a new Sub-processor from acting as a processor of Customer Data when Customer makes use of the Services. If Company does not respond to a Customer objection as described above, or cannot reasonably accommodate Customer’s objection, Customer may terminate the Agreement by providing written notice to Company: (a) within thirty days of receipt of a Company response that does not comply with this Section; or (b) if Company fails to respond, within thirty days of the date Company’s response was due.
- Security Incidents. Company will promptly, and without undue delay, notify Customer if a Security Incident occurs, so long as applicable law allows this notice. Company may limit the scope of, or refrain from delivering, any disclosures to the extent reasonably necessary to avoid compromising the integrity of Company’s security, an ongoing investigation, or any customer’s or end user’s data. “Security Incident” means any actual unauthorized disclosure of or access to Customer Data, or compromise of Company’s systems that Company determines is reasonably likely to result in such disclosure or access, caused by failure of Company’s Security Measures and excluding any unauthorized disclosure or access that is caused by Customer or its End Users, including Customer or its End Users’ failure to adequately secure equipment or accounts.https://digify.com/terms.html
- Company’s Use of Sub-Processors. Customer consents to Company’s appointment of Subcontractors, including