ChannelReply Data Processing Agreement

This Data Processing Agreement (this “Agreement”) is entered into by and between the controller of personal data being processed within the scope of this Agreement (the “Data Controller”), and 3CG CHANNELREPLY LLC, doing business as ChannelReply (the “Data Processor”). This Agreement is an integral part of and incorporated into the Terms and Conditions entered into between the parties (the “Service Agreement”), pursuant to which the Data Processor is providing services to the Data Controller (“Services”).

THE PARTIES HEREBY AGREE AS FOLLOWS:

Subject matter of this Data Processing Agreement
1. This Data Processing Agreement applies to the processing of personal data subject to EU Data Protection Law, the UK Data Protection Law, and the California Consumer Privacy Act ("CCPA") (collectively, "Applicable Data Protection Law") within the scope of the Data Processor providing the Services.
  1. The term "EU Data Protection Law" shall mean Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).
  2. The term “UK Data Protection Law” shall mean the UK Data Protection Act 2018 and the UK General Data Protection Regulation. The UK General Data Protection Regulation is the retained version of Regulation (EU) 2016/679 as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications Regulations 2019 (as amended).
  3. The “California Consumer Privacy Act” or “CCPA” shall mean the California Consumer Privacy Act of 2018, as amended.
2. Any capitalized terms not otherwise defined in this Data Processing Agreement shall have the meanings given to them in the Service Agreement. Except as modified below, the terms of the Service Agreement shall remain in full force and effect. Other terms used in this Data Processing Agreement that have meanings ascribed to them in the Applicable Data Protection Law, including but not limited to “Processing,” “Personal Data,” “Personal Information,” “Data Controller,” and “Processor.”
3. Insofar as the Data Processor will be processing Personal Data subject to EU Data Protection Law, UK Data Protection Law, and/or the CCPA on behalf of the Data Controller in the course of the performance of the Service Agreement with the Data Controller, the terms of this Data Processing Agreement shall apply. In the event of a conflict between any provisions of the Service Agreement and the provisions of this Data Processing Agreement, the provisions of this Data Processing Agreement shall govern and control. An overview of the categories of Personal Data, the categories of data subjects, and the nature and purposes for which the Personal Data are being processed is provided in Annex 1.
The Data Controller and the Data Processor
1. CCPA: Data Controller is a Business and Data Processor is a Service Provider for purposes of the CCPA. Data Processor shall not: (a) sell the Personal Information; (b) retain, use or disclose the Personal Information for any purpose other than for the specific purpose of performing the Services; (c) retain, use, or disclose the Personal Information for a commercial purpose other than providing the Services; or (d) retain, use, or disclose the Personal Information outside of the direct business relationship between Data Processor and Data Controller. Data Processor certifies that it understands these restrictions and will comply with them.
2. Subject to the provisions of the Service Agreement, to the extent that the Data Processor’s data processing activities are not adequately described in the Service Agreement, the Data Controller will determine the scope, purposes, and manner by which the Personal Data may be accessed or processed by the Data Processor. The Data Processor will process the Personal Data only as set forth in Data Controller’s written instructions, and no Personal Data will be processed unless explicitly instructed by the Controller.
3. The Data Processor will only process the Personal Data on documented instructions of the Data Controller to the extent that this is required for the provision of the Services. Should the Data Processor reasonably believe that a specific processing activity beyond the scope of the Data Controller’s instructions is required to comply with a legal obligation to which the Data Processor is subject, the Data Processor shall inform the Data Controller of that legal obligation and seek explicit authorization from the Data Controller before undertaking such processing. The Data Processor shall never process the Personal Data in a manner inconsistent with the Data Controller’s documented instructions. The Data Processor shall immediately notify the Data Controller if, in its opinion, any instruction infringes this Regulation or other Union or Member State data protection provisions. Such notification will not constitute a general obligation on the part of the Data Processor to monitor or interpret the laws applicable to the Data Controller, and such notification will not constitute legal advice to the Data Controller.
4. The Parties have entered into a Service Agreement in order to benefit from the capabilities of the Processor in securing and processing the Personal Data for the purposes set out in Annex 1. The Data Processor shall be allowed to exercise its own discretion in the selection and use of such means as it considers necessary to pursue those purposes, provided that all such discretion is compatible with the requirements of this Data Processing Agreement, in particular the Data Controller’s written instructions.
5. The Parties agree that, unless otherwise agreed between the Parties, both Data Processor and Data Controller will be considered Controllers of Data Processor Data and all other Personal Information, other than the Data Controller Data, processed in relation to the Services performed by Data Processor pursuant to the Agreement. The Data Controller warrants that it has all necessary rights to provide the Personal Data to the Data Processor for the Processing to be performed in relation to the Services, and that one or more lawful bases set forth in Applicable Data Protection Law support the lawfulness of the Processing. To the extent required by Applicable Data Protection Law, the Data Controller is responsible for ensuring that all necessary privacy notices are provided to data subjects, and unless another legal basis set forth in Applicable Data Protection Law supports the lawfulness of the processing, that any necessary data subject consents to the Processing are obtained, and for ensuring that a record of such consents is maintained. Should such a consent be revoked by a data subject, the Data Controller is responsible for communicating the fact of such revocation to the Data Processor, and the Data Processor remains responsible for implementing Data Controller’s instruction with respect to the processing of that Personal Data.
Confidentiality
1. Without prejudice to any existing contractual arrangements between the Parties, the Data Processor shall treat all Personal Data as confidential and shall inform all of its employees, agents and/or approved subprocessors engaged in processing the Personal Data of the confidential nature of the Personal Data. The Data Processor shall ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.
Security
1. Each party shall implement and maintain (and require its subprocessors to maintain) reasonable and appropriate technical, administrative and organizational measures designed to ensure a level of confidentiality and security appropriate to the risks represented by the processing and the nature of the Personal Information and to prevent unauthorized or unlawful processing of Personal Information, including but not limited to measures against accidental loss, disclosure or destruction of, or damage to, Personal Information. Further:
  1. Each party agrees to notify the other party within a reasonable period of time (and in any event within forty-eight (48) hours) where such party becomes aware of or reasonably suspects that Personal Information of the other Party has been or may have been lost, damaged or subject to unauthorized internal or external access or any other unlawful processing (a "Security Incident") and to take reasonable steps to mitigate the impact of any such Security Incident.
  2. Any notifications made to the Data Controller pursuant to this Article shall be addressed to the employee of the Data Controller whose contact details are provided to the Data Processor for this purpose and, in order to assist the Data Controller in fulfilling its obligations under Applicable Data Protection Law, should contain:
    1. a description of the nature of the incident, including where possible the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned;
    2. the name and contact details of the Data Processor’s data protection officer or another contact point where more information can be obtained;
    3. a description of the likely consequences of the incident; and
    4. a description of the measures taken or proposed to be taken by the Data Processor to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
  3. To the extent a party, as Data Controller with respect to Personal Information subject to a Security Incident, seeks the assistance of the other party, the other party agrees to reasonably cooperate with such party to: (a) determine the scope and severity of any such Security Incident; (b) provide timely information and cooperation as such party may require to fulfill such party's data breach reporting obligations under Applicable Laws and contract; and (c) give notice to individuals whose Personal Information is the subject of such Security Incident. Unless a party is obliged to give such notice under Applicable Data Protection Law, such party shall not give notice to individuals in respect of a Security Incident relating to Data of the other party except with the prior written approval of the other party.
  4. The term “Security Incident” used in this Article shall be understood to mean in any case:
    1. a complaint or a request with respect to the exercise of a data subject’s rights under Applicable Data Protection Law.
    2. an investigation into or seizure of the Personal Data by government officials, or a specific indication that such an investigation or seizure is imminent.
    3. any unauthorized or accidental access, processing, deletion, loss or any form of unlawful processing of the Personal Data.
    4. any breach of the security and/or confidentiality as set out in this Data Processing Agreement leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data, or any indication of such breach having taken place or being about to take place.
    5. where, in the opinion of the Data Processor, implementing an instruction received from the Data Controller would violate applicable laws to which the Data Controller or the Data Processor are subject.
  5. At the request of the Data Controller, the Data Processor shall demonstrate the measures it has taken pursuant to this Article 4 and shall allow the Data Controller to audit and test such measures.
  6. Unless otherwise required by a Supervisory Authority of competent jurisdiction, the Data Controller shall be entitled on giving at least 30 days’ notice to the Data Processor to carry out, or have carried out by a third party who has entered into a confidentiality agreement with the Data Processor, audits of the Data Processor's premises and operations as these relate to the Personal Data. The Data Processor shall cooperate with such audits carried out by or on behalf of the Data Controller and shall grant the Data Controller's auditors reasonable access to any premises and devices involved with the processing of the Personal Data. The Data Processor shall provide the Data Controller and/or the Data Controller's auditors with access to any information relating to the processing of the Personal Data as may be reasonably required by the Data Controller to ascertain the Data Processor's compliance with this Data Processing Agreement, and/or to ascertain the Data Processor’s compliance with any approved code of conduct or approved certification mechanism referenced in this Article.
2. The Data Processor’s adherence to either an approved code of conduct or to an approved certification mechanism recognized under Applicable Data Protection Law may be used as an element by which the Data Processor may demonstrate compliance with the requirements set out in Article 4.1, provided that the requirements contained in Annex 2 are also addressed by such code of conduct or certification mechanism.
3. If either party receives information of the other party in Deidentified format, such party shall: (1) implement technical safeguards that prohibit reidentification of the data subject or consumer to whom the information may pertain; (2) implement business processes that specifically prohibit reidentification of the information; (3) implement business processes that prevent inadvertent release of deidentified information; (4) not attempt to reverse engineer the information or otherwise reidentify data subjects or consumers to whom the Deidentified Data relates; and (5) only share the Deidentified Data, if and to the extent such sharing is permitted by this Agreement, in the format it received it from the other party. If a Party does not receive Personal Information in Deidentified format, but the other party instructs such party to only share Personal Information of the other party in a Deidentified format, such party shall ensure it is Deidentified before it is shared.
Improvements to Security
1. The Parties acknowledge that security requirements are constantly changing and that effective security requires frequent evaluation and regular improvements of outdated security measures. The Data Processor will therefore evaluate the measures as implemented in accordance with Article 4 on an ongoing basis in order to maintain compliance with the requirements set out in Article 4. The Parties will negotiate in good faith the cost, if any, to implement material changes required by specific updated security requirements set forth in Applicable Data Protection Law or by data protection authorities of competent jurisdiction.
2. Where an amendment to the Service Agreement is necessary in order to execute a Data Controller instruction to the Data Processor to improve security measures as may be required by changes in Applicable Data Protection Law from time to time, the Parties shall negotiate an amendment to the Service Agreement in good faith.
Data Transfers
1. The Data Processor shall promptly notify the Data Controller of any planned permanent or temporary transfers of Personal Data to a third country, including a country outside of the European Economic Area or the UK without an adequate level of protection, and shall only perform such a transfer after obtaining authorization from the Data Controller, which may be refused at its own discretion.
2. To the extent that the Data Controller or the Data Processor are relying on a specific statutory mechanism to normalize international data transfers and that mechanism is subsequently modified, revoked, or held in a court of competent jurisdiction to be invalid, the Data Controller and the Data Processor agree to cooperate in good faith to promptly suspend the transfer or to pursue a suitable alternate mechanism that can lawfully support the transfer.
Contracting with Third Parties, including Subprocessors
1. The Data Processor shall not subcontract any of its Service-related activities consisting (partly) of the processing of the Personal Data or requiring Personal Data to be processed by any third party without the prior written authorization of the Data Controller.
2. Data Processor shall inform the Data Controller of any addition or replacement of such subprocessors, giving the Data Controller an opportunity to object to such changes. If the Data Controller timely sends the Processor a written objection notice, setting forth a reasonable basis for objection, the Parties will make a good-faith effort to resolve Data Controller’s objection. In the absence of a resolution, the Data Processor will make commercially reasonable efforts to provide Data Controller with the same level of service described in the Service Agreement, without using the subprocessor to process Data Controller’s Personal Data. If the Data Processor’s efforts are not successful within a reasonable time, each Party may terminate the portion of the service which cannot be provided without the subprocessor, and the Data Controller will be entitled to a pro-rated refund of the applicable service fees.
3. Notwithstanding any authorization by the Data Controller within the meaning of the preceding paragraph, the Data Processor shall remain fully liable vis-à-vis the Data Controller for the performance of any such subprocessor that fails to fulfill its data protection obligations.
4. The Data Processor shall ensure that the subprocessor is bound by data protection obligations compatible with those of the Data Processor under this Data Processing Agreement, shall supervise compliance thereof, and must in particular impose on its subprocessors the obligation to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of Applicable Data Protection Law.
5. The Data Controller may request that the Data Processor audit a third-party subprocessor or provide confirmation that such an audit has occurred (or, where available, obtain or assist customer in obtaining a third-party audit report concerning the third-party subprocessor’s operations) to ensure compliance with its obligations imposed by the Data Processor in conformity with this Agreement.
Responding to CCPA Data Subject Requests
1. Each party shall notify the other party of an individual within its organization authorized to respond from time to time to inquiries regarding the Data Controller Data and Data Processor Data including but not limited to data subject and consumer requests for deletion, disclosure and "Do Not Sell," and shall deal with such inquiries promptly, without prejudice to the specific deadlines imposed by Applicable Data Protection Law.
Returning or Destruction of Personal Data
1. Upon termination of this Data Processing Agreement, upon the Data Controller’s written request, or upon fulfillment of all purposes agreed in the context of the Services whereby no further processing is required, the Data Processor shall, at the discretion of the Data Controller, either delete, destroy or return all Personal Data to the Data Controller and destroy or return any existing copies.
2. The Data Processor shall notify all third parties supporting its own processing of the Personal Data of the termination of the Data Processing Agreement and shall ensure that all such third parties shall either destroy the Personal Data or return the Personal Data to the Data Controller, at the discretion of the Data Controller.
Assistance to Data Controller
1. The Data Processor shall assist the Data Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Data Controller’s obligation to respond to requests for exercising the data subject’s rights under the Applicable Data Protection Law.
2. Taking into account the nature of processing and the information available to the Data Processor, the Data Processor shall assist the Data Controller in ensuring compliance with obligations pursuant to Section 4 (Security), as well as other Data Controller obligations under Applicable Data Protection Law that are relevant to the data processing described in Annex 1, including notifications to a supervisory authority or to data subjects, the process of undertaking a Data Protection Impact Assessment, and with prior consultations with supervisory authorities.
3. The Data Processor shall make available to the Data Controller all information necessary to demonstrate compliance with the Data Processor’s obligations and allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller.
Liability and Indemnity
1. The Data Processor indemnifies the Data Controller and holds the Data Controller harmless against all claims, actions, third-party claims, losses, damages and expenses incurred by the Data Controller arising out of a breach of this Data Processing Agreement and/or the Applicable Data Protection Law by the Data Processor.
2. The Data Controller indemnifies the Data Processor and holds the Data Processor harmless against all claims, actions, third-party claims, losses, damages and expenses incurred by the Data Processor arising out of a breach of this Data Processing Agreement and/or the Applicable Data Protection Law by the Data Controller.
3. Each Party shall provide the other a notice of any claim promptly after receiving it; and shall give the indemnifying party the right to control any defense of such claim.
Duration and Termination
1. This Data Processing Agreement shall come into effect on the effective date of the Service Agreement.
2. Termination or expiration of this Data Processing Agreement shall not discharge the Data Processor from its confidentiality obligations as set forth herein.
3. The Data Processor shall process Personal Data until the date of expiration or termination of the Service Agreement, unless instructed otherwise by the Data Controller, or until such data is returned or destroyed on instruction of the Data Controller.
Miscellaneous
1. In the event of any inconsistency between the provisions of this Data Processing Agreement and the provisions of the Service Agreement, the provisions of this Data Processing Agreement shall prevail.
2. This Data Processing Agreement is governed by the laws of Delaware, United States of America.

ANNEX 1

Types of Personal Data that will be processed in the scope of the Service Agreement:

Identifiers
Internet activity
Commercial information
Geolocation data

Categories of data subjects:

ChannelReply clients
Client employees
Client customers
Client prospects

Nature and purpose of the data processing:

Data Processor processes ecommerce prospect, buyer, and order data as well as customer service messages and data on behalf of Data Controller. Messages and data are presented in Data Controller’s customer service software. This is done for the purpose of enabling Data Controller to provide customer service to their prospects and buyers.

ANNEX 2: SECURITY MEASURES

Data Processor shall:

Ensure that the Personal Data can be accessed only by authorized personnel for the purposes set forth in Annex 1 of this Data Processing Agreement;
Take all reasonable measures to prevent unauthorized access to the Personal Data through the use of appropriate physical and logical (passwords) entry controls, securing areas for data processing facilities;
Build in system and audit trails;
Use secure passwords, network intrusion detection technology, encryption and authentication technology, secure logon procedures and virus protection;
Account for all the risks that are presented by processing, for example from accidental or unlawful destruction, loss, or alteration, unauthorized or unlawful storage, processing, access or disclosure of Personal Data;
Ensure pseudonymisation and/or encryption of Personal Data, where appropriate;
Maintain the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
Maintain the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
Implement a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of Personal Data;
Monitor compliance on an ongoing basis;
Implement measures to identify vulnerabilities with regard to the processing of Personal Data in systems used to provide services to the Data Controller; and
Provide employee and contractor training to ensure ongoing capabilities to carry out the security measures established in policy.

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DATA PROCESSING AGREEMENT