Data Processing Agreement

Designmodo Inc. Data Processing Agreement

Last modified: June 15, 2023

This Designmodo Inc. Data Processing Agreement, including its exhibits, (the Agreement”) governs the Processing of Personal Data by Designmodo Inc. having a registered business address at 50 N 1st St, 4i Brooklyn, NY 11249, the United States of America (“Designmodo“). Designmodo offers email builder, website builder, no-code website builder, uptime website monitoring service, email marketing platform, and website hosting services provided via software applications (collectively, the ““Services). This Agreement governs the Processing of Personal Data submitted by an individual user or an entity through the Services (the Client”). Designmodo and the Client are hereby collectively referred to as the Parties” and each individually a Party”.

The Agreement sets out rights and obligations of the Parties regarding the Processing of Personal Data, where Designmodo acts in the capacity of the Data Processor and the Client acts in the capacity of the Data Controller. The Agreement is drafted in accordance with EU Standard Contractual Clauses attached as Exhibit I of the Agreement.

This Agreement is incorporated into, and is subject to, Designmodo terms and conditions. By accepting Designmodo terms and conditions, the Client enters into this Agreement on behalf of itself and, to the extent required under applicable Data Protection Law, in the name and on behalf of its authorised affiliates, if and to the extent Designmodo processes the Personal Data for which such authorised affiliates qualify as the Data Controller.

1. Definitions

1.1. In this Agreement, the following definitions shall apply:

Client’s Data“ shall mean the Personal Data processed through the Services of which the Client is the Data Controller.

“Contract” shall mean a service agreement concluded between the Parties governing the Services.

Data Controller” shall mean a natural or legal person, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

Data Protection Law” means the statutory data privacy and protection regulations applicable to the Client and the Processor protecting the fundamental rights and freedoms of persons with regard to data privacy and the Processing of the Client’s Data by the Processor.

Data Subject” shall mean an identified or identifiable natural person who can be identified, directly or indirectly, in particular by reference to an identifier, such as a 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.

EU” shall mean European Union.

GDPR” shall mean the Regulation (EU) 2016/679 (General Data Protection Regulation).

Instruction” shall mean an instruction issued by the Client to Designmodo and directing Designmodo to perform a Processing activity pertaining to the Client’s Data in order to achieve compliance with the Data Protection Law.

Personal Data” shall mean any information relating to an identified or identifiable natural person.

Data Processor” or “Processor” shall mean a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Data Controller;

Processing” shall mean any operation which is performed on Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

Sub-processor” shall mean an entity that Processes Personal Data as a subcontractor of the Data Processor.

2. Subject matter of Processing

2.1. The Client has engaged Designmodo to provide the Services to the Client by means of the Contract, and the Parties agree that Designmodo shall carry the Processing of the Client’s Data, the categories of which are described in section 4 of this Agreement, pursuant to the terms stated herein.

2.2. This Agreement applies to all activities within the scope of the Services and the Contract in the context of which Designmodo or any Sub-processor may come into contact with the Client’s Data.

2.3. To ensure the transparency of the Processing, the Parties shall keep records of all Processing activities regarding Personal Data, as required by Art. 30 of the GDPR.

3. Scope, nature, and purpose of Processing

3.1. Designmodo shall Process the Client’s Data on behalf of the Client as Client’s Data Processor. The scope, extent, and nature of the Processing are the sole purpose of facilitation of the provision of Services by Designmodo to the Client.

3.2. Designmodo shall ensure that any of its officers, directors, employees, consultants, representatives and other natural persons that participate in the Processing of the Client’s Data agree to the same restrictions and conditions as those listed in this Agreement.

3.3. Each Party shall individually comply with the applicable Data Protection Law, including, but not limited to, the lawfulness of the Processing and the lawfulness of the transmission (if any) of the Client’s Data to Designmodo.

3.4. Designmodo shall Process the Client’s Data only to the extent required and with the purpose of fulfilling the Designmodo’s obligations under the Contract, to the extent necessary for the provision of the Services, and in accordance with the Instructions.

3.5. Should Designmodo wish to use the Client’s Data for the purposes that are not specified in this section 3, Designmodo shall request the Client to provide prior consent in writing.

4. Categories of Personal Data

4.1. Designmodo shall Process all Client’s Data submitted by the Client through the Services in any digital or physical form. To the extent the Client’s Data contains Personal Data, it may consist of Data Subjects’ names, surnames, passwords, phone numbers, and addresses.

4.2. No special categories of Personal Data as defined in Art. 9(1) of the GDPR are processed according to this Agreement.

5. Categories of Data Subjects

5.1. The affected Data Subjects shall include natural persons whose personal data is disclosed by the Clients to Designmodo through the Services, and may include Client’s staff, Client’s customers and prospects.

5.2. Designmodo shall not interact with the Data Subjects directly in any manner without Client’s prior approval.

6. Duration of Processing

6.1. Except where this Agreement expressly stipulates any surviving obligation, this Agreement shall follow the term of the Contract.

6.2. Designmodo shall Process the Client’s Data for as long as the Client’s Data is necessary for the purpose described in section 3 of this Agreement.

6.3. Designmodo shall return to the Client or securely erase Client’s Data from its storage systems as soon as the Client’s Data is no longer necessary for the purpose described in section 3 of this Agreement or the Client requests Designmodo to do so. Upon request of the Client, Designmodo shall provide the Client with a proof of erasure of the Client’s Data.

7. Security of Processing

7.1. Designmodo shall exercise a reasonable degree of care to protect the Client’s Data from misuse, unauthorised access, disclosure, and transfer to any third parties unauthorised by the Client. Such measures shall include, without limitation:

a) Maintaining adequate access control mechanisms (e.g., two-factor authentication, password protection, and limited access) covering any systems, servers, or files in which the Client’s Data is stored;

b) Encryption;

c) DDOS mitigation;

d) Limiting access to the Client’s Data by Designmodo’s officers, directors, employees, consultants, and representatives only to the purpose stated in section 3 of this Agreement; and

e) Conducting regular information security audits.

7.2. Designmodo hereby declares that it has taken appropriate technical and organisational measures to keep the Client’s Data secure and protected against unauthorised or unlawful processing and accidental loss, destruction or damage, and undertakes to continue doing so during the term of this Agreement.

7.3. Designmodo shall appropriately document the technical and organisational measures actually implemented (including each update) for the Processing of the Client’s Data and will hand out the then current version of such documentation to the Client, upon Client’s request (e.g., for audit purposes).

7.4. If, under applicable laws, Designmodo is compelled to disclose the Client’s Data, Designmodo shall inform the Client before any such mandatory disclosure within 24 hours after such a disclosure is requested.

7.5. Any significant changes to the security measures listed in section 7.1 of the Agreement shall be documented by Designmodo and reported to the Client.

8. Correction and deletion of Personal Data

8.1. Designmodo may be required to correct, erase and/or block the Client’s Data if and to the extent the functionality of the Services does not allow the Client to do so. However, Designmodo shall not correct, erase or block the Client’s Data, unless instructed by the Client.

8.2. Unless the Data Protection Law provides otherwise, there shall not be any direct communication between the Data Subjects and Designmodo. In the event that a Data Subject does apply directly to Designmodo in writing with a request to exercise Data Subject’s legitimate rights, e.g., to request the correction or deletion of his/her Personal Data, Designmodo shall forward this request to the Client without undue delay and shall not respond directly to the Data Subject.

9. Data Processor’s obligations

9.1. In addition to any other obligations set out in this Agreement, Designmodo shall:

a) Comply with all laws and regulations applicable to the Designmodo’s business activities;

b) Ensure that persons authorised to Process the Client’s Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Designmodo shall regularly train those persons to whom it grants access to the Client’s Data on IT security and privacy law compliance. The undertaking to data secrecy shall continue after the termination of this Agreement;

c) Ensure that any natural person acting under the authority of Designmodo who has access to the Personal Data does not process them except on instructions from the Client;

d) Assist the Client in compliance with Client’s obligations under the applicable Data Protection Law;

e) Make available to the Client all information necessary to demonstrate compliance with Designmodo’s obligations under the Agreement, the Data Protection Law, and allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client;

f) Appoint a data protection officer if it is legally obliged to do so or, if it is not obliged to do so, a contact person for data protection issues;

g) Provide the Client, upon request in writing, with the name and contact details of its data protection officer or the contact person for data protection issues;

h) Monitor the Processing by way of regular reviews concerning the performance of and compliance with this Agreement, the Contract, and the applicable Data Protection Law;

i) At Client’s written request, reasonably support the Client in dealing with requests from individual Data Subjects and/or a supervisory authority with respect to the Processing of the Personal Data hereunder;

j) Assist the Client with the implementation of appropriate technical and organisational measures in order to respond to applications by the Data Subjects for the exercise of their rights;

k) Provide at minimum the information in accordance with Art. 33(3) of the GDPR in the case of a Personal Data breach;

l) Communicate the necessary information to the Data Subjects after a Personal Data breach pursuant to Art. 34 of the GDPR; and

m) If applicable under Art. 35 of the GDPR, conduct prior (i.e., before the start of the processing) data protection impact assessments and, if necessary, consult with a supervisory authority.

10. Sub–processors

10.1. The Client hereby authorises Designmodo to engage Sub-processors as specified in Annex III to the Agreement, provided that Designmodo remains responsible for any acts or omissions of its Sub-processors in the same manner as for its own acts and omissions hereunder.

10.2. Designmodo may remove or appoint suitable and reliable other Sub-processor(s) at its own discretion in accordance with the following conditions:

a) Designmodo shall inform the Client fourteen (14) days in advance of any envisaged changes to the list of Sub-processors;

b) If the Client has a legitimate data protection related reason to object to Designmodo’s use of Sub-processor(s), the Client shall notify Designmodo within fourteen (14) days after receipt of the Designmodo’s notice;

c) If the Client does not object during this time period, the new Sub-processor(s) shall be deemed accepted;

d) If the Client objects to the use of the Sub-processor(s) concerned, Designmodo shall have the right to cure the objection through one of the following options (to be selected at Designmodo’s sole discretion):

i. Designmodo will abort its plans to use the Sub-processor(s) with regard to the Client’s Data; or

ii. Designmodo will take corrective steps and proceed to use the Sub-processor(s) with regard to the Client’s Data.

e) If Designmodo decides not to implement option 10.2.d.i or 10.2.d.ii above, Designmodo shall notify the Client without undue delay. In this case, the Client shall be entitled within further fourteen (14) days to notify in writing Designmodo about its termination of the Agreement and any such termination would become effective upon the expiry of the second (2^nd) calendar month after Processor’s receipt of the termination notice.

10.3. Designmodo shall pass on to its subcontractors acting as the Sub-processors Designmodo’s obligations under this Agreement.

10.4. Designmodo shall ensure that, where the Client’s Data is transferred from the territory where the Client is located, appropriate safeguards, including the transfer mechanisms listed in section 14, are applied by Designmodo to ensure that the Client’s Data is further processed in a secure manner compliant with this Agreement and the Data Protection Law.

11. Personal Data breaches

11.1. Within 24 hours after Designmodo becomes aware of any unauthorised use or disclosure of the Client’s Data, Designmodo shall promptly report the unauthorised use or disclosure of the Client’s Data to the Client.

11.2. Designmodo shall cooperate with any remediation that the Client, in its discretion, determines is necessary to (i) address any applicable reporting requirements and (ii) mitigate any effects of unauthorised use or disclosure of the Client’s Data.

11.3. In consultation with the Client, Designmodo must take appropriate measures to secure the Client’s Data and limit any possible detrimental effect on the Data Subjects. Where obligations are placed on the Client under the Data Protection Law, Designmodo shall provide commercially reasonable assistance in meeting them.

12. Notifications

12.1. If Designmodo receives a request, subpoena or court order (including through an obligation due to legal provisions or official injunctions from state authorities) requesting to provide any Client’s Data to an authority, Designmodo shall attempt to redirect the relevant authority to request that data directly from the Data Controller, and notify the Client without undue delay.

12.2. Where the Client’s Data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while in Designmodo’s control, Designmodo shall notify the Client of such action without undue delay.

13. Instructions

13.1. The Instructions to Designmodo are initially laid out in this Agreement. However, the Client shall be entitled to issuing modifications to Instructions and to issue new Instructions, subject to feasibility.

13.2. The Client shall designate a person competent to issue the Instructions. Modifications or new Instructions shall be issued in writing and shall need to be agreed between the Parties as a contract modification/change request under this Agreement.

13.3. Designmodo shall not be obligated to perform a comprehensive legal examination and shall in no event render any legal services to the Client.

13.4. Designmodo shall not be responsible for any consequences of the Instructions issued by the Client and the Client shall indemnify and hold Designmodo harmless against any damages and third-party claims resulting from the Instruction.

13.5. Unless otherwise agreed, Designmodo shall be entitled to charge any efforts incurred in connection with the Instructions on time and material basis.

14. Transfer mechanisms

14.1. Designmodo makes available the transfer mechanisms, namely, concluding data processing agreements based on the Standard Contractual Clauses, which shall apply to any transfers of the Personal Data under this Agreement from the EU, the European Economic Area and/or their member states, Switzerland, and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of the GDPR.

14.2. For any other cross-body transfers of Personal Data, Designmodo shall take steps necessary to ensure the compliance with the applicable data protection rules and regulations.

15. Miscellaneous

15.1. No modification of this Agreement shall be valid and binding unless made in writing and then only if such modification expressly states that such modification applies to the regulations of this Agreement. The foregoing shall also apply to any waiver or modification of this mandatory written form.

15.2. This Agreement shall take precedence over any conflicting provisions of the Contract.

15.3. This Agreement will commence on the date when both Parties sign the Agreement and continue until terminated earlier by either Party.

15.4. Either Party may terminate this Agreement for any reason upon thirty (30) calendar days’ notice to the other Party.

15.5. Each Party may terminate this Agreement with immediate effect by delivering a notice of the termination to the other Party if:

a) The other Party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations; and

b) The failure, inaccuracy, or breach continues for a period of thirty (30) calendar days’ after the injured Party delivers notice to the breaching Party reasonably detailing the breach.

15.6. If either Party becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation, the other Party may terminate this Agreement with immediate effect.

15.7. Upon expiration or termination of this Agreement or on Client’s request, Designmodo shall:

a) Promptly securely delete or return any Client’s Data available to Designmodo and any other information and documents, provided by the Client; and

b) Deliver to the Client a certificate confirming Designmodo’s compliance with the destruction obligation under this section 15.7.

15.8. Neither Party may assign this Agreement or any of their rights or obligations under this Agreement without the other Party’s prior consent.

15.9. The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement in a good faith through negotiations between senior executives of the Parties, who have authority to settle the same. If the matter is not resolved by negotiation within thirty (30) days of receipt of a written invitation to negotiate, the dispute shall be resolved by using binding arbitration services.

15.10. The headings used in this Agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.

15.11. If there is any inconsistency between the terms of this Agreement and those in any document entered into under this Agreement, the terms of this Agreement shall prevail. The Parties shall take all necessary steps to conform the inconsistent terms to the terms of this Agreement.

Attached Exhibit I: Standard Contractual Clauses (MODULE TWO: Transfer controller to processor): Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.

EXHIBIT I

Standard Contractual Clauses (MODULE TWO: Transfer controller to processor):

Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.

SECTION I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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)^[1] for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)

have agreed to these standard contractual clauses (hereinafter: “Clauses”).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(e) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii) Clause 9(a), (c), (d) and (e);

(iv) Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18(a) and (b).

(f) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(g) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(h) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(i) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Docking clause

(j) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(k) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(l) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

(m) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(n) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

(o) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(p) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(q) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(r) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union^[2] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

(e) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(f) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(g) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(h) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(i) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

(j) The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least 14 days prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.

(k) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.^[3] The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(l) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(m) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(n) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

(o) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(p) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(q) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

(r) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject. The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body^[4] at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.

(s) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(t) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(u) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(v) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(w) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(x) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(y) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(z) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(aa) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(bb) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(cc) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

(dd) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

(ee) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

(ff) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

(gg) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(hh) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards^[5];

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(ii) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(jj) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(kk) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(ll) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1 Notification

(mm) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(nn) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(oo) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(pp) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(qq) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

(rr) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(ss) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(tt) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

(uu) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(vv) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(ww) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(xx) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(yy) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the EU country where the Client is based; if the Client is not based in the EU, the law of Ireland shall govern these Clauses.

Clause 18

Choice of forum and jurisdiction

(zz) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(aaa) The Parties agree that those shall be the courts of the EU country where the Client is based; if the Client is not based in the EU, the law of Ireland shall govern these Clauses.

(bbb) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(ccc) The Parties agree to submit themselves to the jurisdiction of such courts.

ANNEX I

A. LIST OF PARTIES

Data exporter(s): the Client

Role (controller/processor): Controller

Data importer(s):

Name: Designmodo Inc.

Address: 50 N 1st St, 4i Brooklyn, NY 11249, the United States of America

Contact person’s name, position and contact details: Edvard Khondkaryan, representative, info@designmodo.com

Activities relevant to the data transferred under these Clauses: services pertaining to email creation, website creation, uptime website monitoring, a no-code website creation, email sending, and website hosting.

Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred: natural persons whose personal data is included in the sets of data provided by the data exporter within the scope of the services, including, without limitation, data exporter’s staff, data exporter’s customers and prospects.

Categories of personal data transferred: Natural persons’ names, surnames, passwords, access codes, images, email addresses, URLs, company names, phone numbers, physical addresses, website usage data, and any other Personal Data made accessible by the data exporter to the data importer.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: None

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): continuous basis, within the terms of the service contract between the data exporter and data importer.

Nature of the processing: collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of personal data within the scope of the services commissioned by the data exporter from the data importer.

Purpose(s) of the data transfer and further processing: (i) performing data importer’s contractual obligations to the data exporter; and (ii) pursuing data importer’s legitimate business interests (i.e., analysing the services and developing new products and services).

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: the personal data is retained as long as the service contract between the data exporter and the data importer lasts, unless the applicable law requires otherwise.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: provision of hosting, security, and advisory services within the term of the service contract concluded by and between the data exporter and the data importer.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13: the supervisory authority of the country where data exporter is based. If data exporter is not based in the EU, the Irish Data Protection Commission shall be competent.

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

• Use of firewalls and safe server rooms;

• Proper access control systems;

• Encryption;

• Controlled provision of user rights and supervision of their use;

• Providing instructions for data processors;

• Thorough selection of competent subcontractors who comply with industry standards for information security management;

• Anonymisation of personal data; and

• Data processing agreements concluded with subcontractors.

ANNEX III

LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors:

Sub-processor	Subject matter	Duration of processing
OVH Hetzner Vultr Servers.com Amazon AWS DigitalOcean	Provision of hosting and cloud storage services	Duration of the Agreement
Brevo Postmark	Provision of newsletter services	Duration of the Agreement
Help Scout Gsuite	Provision of technical support services	Duration of the Agreement
Github Gitlab Atlassian Sentry	Provision of developing services	Duration of the Agreement
Brevo Getsitecontrol Metorik	Provision of marketing services	Duration of the Agreement
Google Analytics Mixpanel Amplitude Metorik	Provision of analytics services	Duration of the Agreement
Stripe PayPal	Provision of payment services	Duration of the Agreement
Help Scout Slack	Provision of live chat services	Duration of the Agreement
OpenAI	Provision of AI services	Duration of the Agreement
Zapier, Twilio Telegram Google MaxMind Check-Mail.org	Other	Duration of the Agreement
Independent contractors and consultants	Provision of advisory, support, and consultancy services to the data importer	Duration of the Agreement