Last Revised December 15, 2020.
(i) Claims caused by any act error, omission, fault or negligence of Customer or any Authorized User or any other party or their respective employees, customers or permitted assigns, or(ii) Claims arising under a warranty or representation by Customer to any Authorized User or to any third party in connection with the System, or(iii) Claims arising out of libel, slander, infringement of copyright, trademarks, service marks, trade secrets or patents, or breach in the privacy or security of transmissions directly or indirectly related to the use of the System, or (iv) Claims related to the rights of persons and entities that are not parties to this Agreement relating to the products and services provided directly or indirectly by AllClients that may include tools by which Customer or Authorized Users can contact third parties by phone, email and/or text messages (herein “Dissemination of Information”).
4.2 ALLCLIENTS SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR DISSEMINATION OF INFORMATION. Customer represents and warrants that it will inquire of its own legal counsel as to the legality of any Dissemination of Information and/or actions in furtherance of such dissemination, and Customer assumes all responsibility for knowledge of, and compliance with, state and federal statutes, regulations, ordinances and other strictures governing the Dissemination of Information. Customer will use AllClients’ products, software and data base in full compliance with, and shall indemnify AllClients for failures of any person or entity, including but not limited to Customers and Authorized Users to fully comply with, all state and federal statutes, regulations, ordinances and other strictures governing the Dissemination of Information and/or actions in furtherance of such dissemination.
4.3 If AllClients receives notice of any Claim with respect to which it may be entitled to be indemnified by Customer hereunder it shall promptly give notice of the same to Customer. If Customer does not assume the defense of such Claim and unconditionally acknowledge its obligation to indemnify AllClients with respect thereto, AllClients shall be entitled to take such actions with regard thereto as it shall in its sole discretion determine including, but not limited to, de-activation of any Authorized User that it reasonably suspects is responsible for the conduct giving rise to the Claim and, if the misuse of the System is sufficiently serious, and after prior notice to Customer, to suspend all services provided hereunder until Customer is able to demonstrate to the reasonable satisfaction of AllClients that such misuse will not reoccur.
Use of logo. Customer hereby grants to AllClients the express right to use Customer’s name and company logo in marketing, sales, financial, and public relations materials and other communications solely to identify Customer as an AllClients customer. AllClients hereby grants to Customer the express right to use AllClients’ name and logo solely to identify AllClients as a provider of services to Customer. Other than as expressly stated herein, neither party shall use the other party’s marks, codes, drawings, or specifications without the prior written permission of the other party.
Termination and Suspension. We may terminate or deny access to any part, or all of the services offered, for non-payment. In the event that a customer is rude, abusive or otherwise conducts themselves in an unprofessional manner with any AllClients personnel (whether by in person, over the telephone or in other communications) we may deny access to all or any part of the services (or to any such user) or we may elect by notice in writing to terminate this agreement in its entirety. Additionally, there may be rare occasions where we need to suspend the service for repairs, upgrades or maintenance reasons. If we were to terminate the service permanently, pre-paid customers would be refunded any pre-paid months not used.
This Data Processing Addendum (this “DPA”) is made between AllClients, LLC, a limited liability company organized and existing under the laws of the States of California and Nevada, U.S.A. (“AllClients”), and the entity or person obtaining a license to use the AllClients.com product.
1. Definitions.1.1 For the purposes of this DPA, the following terms shall have their respective meanings set forth below and other capitalized terms used but not defined in this DPA have the same meanings as set forth in the Agreement:
(b) “EEA” means the European Economic Area (including the United Kingdom).
(c) “EU Data Protection Legislation” means on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) (as amended, replaced or superseded).
(d) “Controller” means the entity which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
(e) “Processor” means an entity which processes Personal Data on behalf of the Controller. person.
(f) “Personal Data” means any information relating to an identified or identifiable natural; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
(g) “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, such as 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;
(h) “Sub-processor” means the entity engaged by the Data Processor or any further Sub-processor to process Personal Data on behalf and under the authority of the Data Controller.
(i) “Security Incident” means accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
(j) “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (iii) employment, financial, genetic, biometric or health information; (iv) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (v) account passwords; (vi) date of birth; (vii) criminal history; (viii) mother’s maiden name; and (ix) any other information that falls within the definition of “special categories of data” under EU Data Protection Legislation or any other applicable law relating to privacy and data protection.
2. Relationship with Agreement.2.1 Except as amended by this DPA, the Agreement will remain in full force and effect.
2.2 If there is a conflict between the Agreement and this DPA, the terms of this DPA will control.
2.3 Any claims brought under this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
3. Applicability of this DPA.3.1 The general data protection obligations set forth in Part A (being Sections 4 to 6 as well as Annex A), apply to the processing of Personal Data under the Agreement from the Effective Date. Part B (being Sections 7 to 11) apply to the processing of Personal Data by AllClients within the scope of the GDPR.
3.2 With respect to the processing of Personal Data falling within the scope of Part B:
(a) the terms of Part B shall apply in addition to, and not in substitution of, the terms in Part A; and
(b) to the extent there is any conflict between the provisions in Part A and Part B, the provisions in Part B shall take priority.
3.3 Notwithstanding anything in this DPA, AllClients will have the right to collect, extract, compile, synthesize and analyze aggregated, non-personally identifiable data or information (data or information that does not identify Customer or any other entity or natural person as the source thereof) resulting from Customer’s use or operation of the Services (“Service Data”) including, by way of example and without limitation, information relating to number of contacts, todo’s, and deals; phone call lengths in minutes, email sending statistics, free trial statistics. To the extent any Service Data is collected or generated by AllClients, such data will be solely owned by AllClients and may be used by AllClients for any lawful business purpose without a duty of accounting to Customer For the avoidance of doubt, this DPA will not apply to Service Data
Part A: General data protection obligations
4. Roles and responsibilities.4.1 Parties’ Roles. Customer, as Controller, appoints AllClients as a Processor to process the Personal Data described in Annex A on Customer’s behalf.
4.2 Purpose Limitation. AllClients shall process the Personal Data only for the purposes described in Annex A and only in accordance with this DPA, the attached “Schedule A”, which incorporated into, and made a part of this DPA, and the other lawful, documented instructions of Customer, except where otherwise required by Applicable Law. The Agreement, Schedule A and this DPA sets out Customer’s complete instructions to AllClients in relation to the processing of the Personal Data and any processing required outside of the scope of these instructions will require prior written agreement between the parties.
4.3 Prohibited Data. Customer will not provide (or cause to be provided) any Sensitive Data to AllClients for processing under the Agreement, and AllClients will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident or otherwise. For the avoidance of doubt, this DPA will not apply to Sensitive Data.
4.4 Description of Processing. A description of the nature and purposes of the processing, the types of Personal Data, categories of data subjects, and the duration of the processing are set out further in Annex A.
4.5 Compliance. Customer shall be responsible for ensuring that:
(a) it has complied, and will continue to comply, with all Applicable Laws relating to privacy and data protection, including EU Data Protection Legislation, in its use of the Services and its own processing of Personal Data (except as otherwise required by Applicable Law); and
(b) it has, and will continue to have, the right to transfer, or provide access to, the Personal Data to AllClients for processing in accordance with the terms of the Agreement and this DPA.
5. Security.AllClients will ensure that Personal Data is kept in a safe environment and secured against loss, misuse, unauthorized access, disclosure, alteration or destruction, taking due account of the nature of the data and the risks involved in the processing.
Part B: GDPR Obligations
6. Additional Security.6.1 Confidentiality of processing. AllClients shall ensure that any person that it authorizes to process the Personal Data shall be subject to a duty of confidentiality (whether a contractual or a statutory duty).
6.2 Security Incidents. Upon becoming aware of a Security Incident, AllClients shall notify Customer without undue delay and shall provide such timely information as Customer may reasonably require, including to enable Customer to fulfil any data breach reporting obligations under EU Data Protection Legislation. AllClients shall take appropriate and commercially reasonable steps to mitigate the effects of such a Security Incident on the Personal Data under this Agreement.
7. Sub-processing.7.1 Sub-processors. Customer agrees that AllClients may engage AllClients’ affiliates and third party sub-processors (collectively, “Sub-processors”) to process the Personal Data on AllClients’ behalf. Sub-processors may provide hosting services and may provide plug-in tools and services that enhance the AllClients product offering. A list of Sub-processors currently engaged by AllClients may be found at https://AllClients.com/u/gdpr-subprocessors
7.2 Changes to Sub-processors. Customer Changes to Sub-processors. Customer will be notified if AllClients, adds or replaces any Sub-processors. If Customer has not previously consented to such changes, within five (5) calendar days of such notification, Customer may object inwriting to the appointment of any additional or replacement Sub-processor in which case AllClients will permit Customer to terminate the affected AllClients service in accordance with the termination provisions of the Agreement. If no such objection is received, Customer will be deemed to have consented to such changes. may object in writing to the appointment of an additional Sub-processor within five (5) calendar days after receipt of AllClients notice in accordance with the mechanism set out at Section 8.1 above. In the event that Customer objects on reasonable grounds relating to the protection of the Personal Data, then the parties shall discuss commercially reasonable alternative solutions in good faith. If no resolution can be reached, AllClients will, at its sole discretion, either not appoint Sub-processor, or permit Customer to suspend or terminate the affected AllClients service in accordance with the termination provisions of the Agreement.
7.3 Sub-processor obligations. Where a Sub-processor is engaged by AllClients as described in this Section 8, AllClients shall:
(a) restrict the Sub-processor’s access to Personal Data only to what is necessary to perform the subcontracted services;
(b) impose on such Sub-processors data protection terms that protect the Personal Data to the same standard provided for by this DPA; and
(c) remain liable for any breach of the DPA caused by a Sub-processor.
8. Cooperation8.1 Cooperation and data subjects’ rights. AllClients shall, taking into account the nature of the processing, provide reasonable assistance to Customer insofar as this is possible, to enable Customer to respond to requests from a data subject seeking to exercise their rights under EU Data Protection Legislation. In the event that such request is made directly to AllClients, AllClients shall promptly inform Customer of the same.
9. Security.9.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the services provided by AllClients pursuant to the Agreement, AllClients will implement appropriate technical and organizational measures to ensure a level of security appropriate to the associated risk relative to Personal Data, including, inter alia, as appropriate:
(a) the pseudonymization and encryption of Personal Data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
(d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
9.2 In assessing the appropriate level of security AllClients will take into account, in particular, the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
9.3 AllClients will take steps to ensure that any person acting under the authority of the Controller or AllClients who has access to Personal Data does not process such Personal Data except on instructions from the Controller, unless he or she is required to do so by EU Data Protection Legislation.
10. Deletion / return of data. Upon termination or expiry of the Agreement, AllClients shall at Customer’s election, delete or return to Customer the Personal Data (including copies) in AllClients’ possession, save to the extent that AllClients is required by any Applicable Law to retain some or all of the Personal Data.
Nature and purposes of processing.AllClients is a US headquartered provider of cloud-based transactional and marketing email delivery, management and analytics services. These services will consist primarily of managing interaction with current and potential customers, providing marketing automation tools, and sending and delivering e-mail communications on behalf of the Customer. All content entered into AllClients’ systems are determined by the Customer in its sole discretion.
Otherwise, the data processing will involve any such processing that is necessary for the purposes set out in the Agreement, the DPA, Schedule A or as otherwise agreed between the parties
Categories of data subjects.The personal data transferred concern any data subject who has been added as a contact into the AllClients system which the Customer instructs AllClients to manage.
Categories of data.The personal data transferred concern the following categories of data for the data subjects:
The personal data transferred to AllClients for processing is determined and controlled by the Customer in its sole discretion. As such, AllClients has no control over the volume and sensitivity of personal data processed through its service by the Customer.
Special categories of data (if appropriate).AllClients does not intentionally collect or process any special categories of data in the provision of its service. Under the Agreement, the Customer agrees not to provide special categories of data to AllClients at any time.
Duration of processing.The personal data will be processed for the term of the Agreement, or as otherwise required by law or agreed between the parties.
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, the data exporter and the data importer; 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 Annex A.
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;
(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;
(d) ‘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;
(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 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.
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 organizational 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, 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;
(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;
(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).
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 organizational 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 unauthorized access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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.
Mediation and jurisdiction.
(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.
Cooperation with supervisory authorities.
Governing Law.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.
Obligation after the termination of personal data processing services.
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.
The data exporter is:
The entity or person obtaining a license to use the AllClients.com product. Data importer
The data importer is:
The personal data transferred concern the following categories of data subjects:
The personal data transferred concern any data subject who has been added as a contact into the AllClients system which the Customer instructs AllClients to manage.
Categories of data
The personal data transferred concern the following categories of data for the data subjects:
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
AllClients does not intentionally collect or process any special categories of data in the provision of its service. Under the Agreement, the Customer agrees not to provide special categories of data to AllClients at any time.
The personal data transferred will be subject to the following basic processing activities:
These services will consist primarily of managing interaction with current and potential customers, providing marketing automation tools, and sending and delivering e-mail communications on behalf of the Customer. All content entered into AllClients’ systems are determined by the Customer in its sole discretion.
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 organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the services provided by AllClients pursuant to the Agreement, AllClients will implement appropriate technical and organizational measures to ensure a level of security appropriate to the associated risk relative to Personal Data, including, inter alia, as appropriate:
(a) the pseudonymisation and encryption of Personal Data;
In assessing the appropriate level of security AllClients will take into account, in particular, the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
AllClients will take steps to ensure that any person acting under the authority of the Controller or AllClients who has access to Personal Data does not process such Personal Data except on instructions from the Controller, unless he or she is required to do so by EU Data Protection Legislation.