DPA For Customers (Controller-Processor)

1.3. Definitions:

2.1. Roles of the Parties. With respect to any Personal Data collected or Processed via the Services, it is agreed that (a) Client acts as a Data Controller, and (b) Company acts as a Data Processor; and (c) Company or its Affiliates may engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below. For the purposes of the CCPA and CPRA, and to the extent applicable, Client is the Business and Company is the Service Provider.

2.2. Details of Processing. Schedule 1 (Details of Processing) includes a description of the Processing activities performed by Company as a Processor, on behalf of the Client. The Parties may, from time to time, jointly agree to make such changes to Schedule 1 as reasonably necessary to meet the requirements of GDPR Article 28(3) or any other applicable Data Protection Law and Regulation regarding information to be Processed in an agreement between a Controller and a Processor (or similar definitions).

2.3. Subject to the Agreement, Company will Process Personal Data in accordance with Client’s instructions and as necessary for the performance of the Services,  the performance of the Agreement, including this DPA, unless required otherwise by Union or Member State law or any other applicable law to which Company and its Affiliates are subject. In which case, and if known to Company, Company will inform Client of the legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. The duration of the Processing, the nature and purposes of the Processing, as well as the types of Personal Data Processed and categories of Data Subjects under this DPA are further specified in Schedule 1.

2.4. To the extent that Company or its Affiliates cannot comply with a request (including, without limitation, any instruction, direction, code of conduct, certification, or change of any kind) from Client and/or its authorized users relating to Processing of Personal Data, or where Company considers such a request to be unlawful, Company (i) will inform Client, providing relevant details of the problem, (ii) may, without any kind of liability towards Client, temporarily cease all Processing of the affected Personal Data (other than securely storing those data), and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, each Party may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Client shall pay to Company all the amounts owed to Company or due before the date of termination. Client will have no further claims against Company (including, without limitation, requesting refunds for Services) due to the termination of the Agreement and/or the DPA in the situation described in this paragraph (excluding the obligations relating to the termination of this DPA set forth below).

2.5. Company will not be liable in the event of any claim brought by a third party, including, without limitation, a Data Subject, arising from any act or omission of Company, to the extent that such is a result of Client’s instructions.

2.6. Client’s Processing of Personal Data.

2.7. Sensitive Data. The Parties agree that the Services are not intended for the Processing of Sensitive Data, and that if Client wishes to use the Services to Process Sensitive Data, it must first obtain (a) an explicit prior written approval of Company and (b) demonstrate legal basis as required by applicable law; and (c) enter into any additional agreements and/or policies as may be required by Company.

3.1. If Company receives a request from a Data Subject to exercise its right to be informed, right of access, right to rectification, erasure, restriction of Processing, data portability, right to object, or its right not to be subject to a decision solely based on automated processing, including profiling (“Data Subject Request”), Company shall, to the extent legally permitted, promptly notify and forward such Data Subject Request to Client.

3.2. Taking into account the nature of the Processing, Company shall use commercially reasonable efforts to assist Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Client’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. To the extent legally permitted, Client shall be responsible for any costs arising from Company’s assistance.

4.1. Confidentiality. Company will grant access to Personal Data to persons under its authority (including, without limitation, its personnel) only on a need-to-know and need-to-access basis and ensure that such persons engaged in the Processing of Personal Data have committed themselves to confidentiality.

4.2. Company may disclose and Process the Personal Data (a) as permitted hereunder (b) to the extent required by a court of competent jurisdiction or other Supervisory Authority and/or otherwise as required by applicable laws or applicable Data Protection Laws and Regulations (in such a case, Company will inform the Client of the legal requirement before the disclosure, unless that law prohibits such information on important grounds of public interest), or (c) on a “need-to-know” basis under an obligation of confidentiality to legal counsel(s), data protection advisor(s), accountant(s), investors or potential acquirers.

5.1. Authorized Sub-processors. Customer provides general authorization to Company’s use of sub-processors to provide processing activities on Clients’ Data on behalf of Client (“Sub-processors”) in accordance with this Section. Company’s current list of Sub-processors is included in Schedule 2 (“Sub-processor List”), is made available online, and is hereby approved by Data Controller.

5.2. Notice. Prior to the engagement of any new Sub-Processor, Company will update the applicable Sub-processor List and provide Client with a mechanism to obtain notice of that update (such as an email notification or, notice in the applicable Service’s dashboard or websites). To object to a Sub-processor, Customer can: (i) follow the objection mechanism described in Section 5.3, or (ii) terminate the Agreement pursuant to Section 5.3, or (iii) cease using the portion of the Services for which Company has engaged the Sub-processor; or (iv) request Company for specific customizations where the engaged the Sub-processor is no longer invovled (if possible and does not involve additional costs).

5.3. Objection. Within three (3) business days from Company’s notice of a new Sub-processor, Client may reasonably object for reasons related to the GDPR to Company’s engagement with the new Sub-processor by providing a written and explained objection to dpo@nimbleway.com or, via any mechanism made available via the Services. In the event that Client reasonably objects to Sub-processor, and the Parties do not find a solution in good faith to the issue in question, then Client may, terminate the applicable Agreement with respect only to those Services which cannot be provided by Company without the use of the objected-to Sub-processor. Client will have no further claims against Company due to (i) past use of approved Sub-processors prior to the date of objection or (ii) the termination of the Agreement (including, without limitation, requesting refunds) and the DPA in the situation described in this paragraph.

5.4. Agreements with Sub-processors. Company or Sub-processor operating on behalf of Company, has entered into a written agreement with its Sub-processors containing appropriate safeguards to the protection of Personal Data. Where Company engages a Sub-processor for carrying out specific Processing activities on behalf of the Client, the same or materially similar data protection obligations as set out in this DPA will be imposed on such new Sub-processor by way of a contract, and in particular, obligations to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of the applicable Data Protection Law and Regulation.

6.1. Controls for the Protection of Personal Data. Taking into account the nature of Processing, Company shall maintain all industry-standard technical and organizational measures required pursuant to Article 32 of the GDPR (or, as otherwise applicable and required by Data Protection Laws and Regulations for the protection and security of Personal Data, including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data, confidentiality and integrity of Personal Data.

6.2. Upon Client’s request, Company will use commercially reasonable efforts to assist Client, at Client’s cost, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing, the costs of implementation, the scope, the context, the purposes of the Processing and the information available to Company.

7.1. To the extent required under applicable Data Protection Laws and Regulations, Company shall notify Client without undue delay after becoming aware of accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, including Personal Data transmitted, stored or otherwise Processed by Company or its Sub-processors of which Company becomes aware (“Personal Data Incident”).

7.2. Company will make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as Company deems necessary, possible and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within Company’s reasonable control. The obligations herein shall not apply to incidents that are caused by Client or Client’s users. In any event, Client will be the party responsible for notifying supervisory authorities and/or concerned data subjects (where required by Data Protection Laws and Regulations).

8.1. Contractual Relationship. The Parties acknowledge and agree that, by executing the DPA, the Client enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement,  this DPA and Applicable Laws and Regulations, and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Client.

8.2. Communication. The Client shall remain responsible for coordinating all communication with Company under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

9.1. Transfers to countries that offer an adequate level of data protection. Personal Data may be transferred from an EU Member State, the three EEA member countries (Norway, Liechtenstein and Iceland), (collectively, “EEA”), Switzerland and the United Kingdom (UK) to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the Union, the Member States or the European Commission (“Third Countries” and “Adequacy Decisions”, respectively), without any further safeguard being necessary.

9.2. Transfers to other countries. If the Processing of Personal Data includes transfers from the EEA or the UK to countries outside the EEA or the UK, respectively, which do not offer an adequate level of data protection or which have not been subject to an Adequacy Decision (“Other Countries”), the Parties shall comply with Chapter V of the GDPR, including, if necessary, executing the update framework (including, without limitation, Standard Contractual Clauses (SCC) adopted by the relevant data protection authorities of the EEA, the Union, the Member States, the UK, the European Commission or any other relevant authority) or comply with any of the other mechanisms provided for in the applicable Data Protection Laws and Regulations  for cross border transfers of  Personal Data to such Other Countries.

9.3. Without limiting the generality of Sections 9.1 and 9.2, for the purpose of Chapter V of the GDPR, or similar provisions under any Applicable Laws and Regulation, Company may transfer Personal Data, including, without limitation, to Processors (in its role as a Controller), to Sub-Processors and/or to Company’a group member companies in Third Countries where such transfers are conducted in a lawful manner under the GDPR (or the UK GDPR), or to Other Countries where such Personal Data transfers are (i) governed by the applicable Standard Contractual Clauses, or (ii) otherwise based on an international agreement under Article 48 of the GDPR; or (iii) subject to a derogation under Article 49 of the GDPR.

9.4. Schedule 3 sets forth the applicable Standard Contractual Clauses applicable to the Parties' engagement under this DPA.

10.1. This DPA shall automatically terminate upon the termination or expiration of the Agreement under which the Services are provided. Sections 2.2, this Section 10 and 11 shall survive the termination or expiration of this DPA for any reason. This DPA cannot, in principle, be terminated separately from the Agreement, except where the Processing ends before the termination of the Agreement, in which case, this DPA shall automatically terminate.

10.2. This DPA will remain in effect for as long as personal data is processed as per the Agreement.

11.1. In case of any conflict between the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail.

11.2. Notwithstanding anything to the contrary in the Agreement and/or in any agreement between the Parties and to the maximum extent permitted by law: (a) Company’s (including Company’s Affiliates’) entire, total and aggregate liability, related to Personal Data or information, privacy, or for breach of, this DPA and/or Data Protection Laws and Regulations, including, without limitation, if any, any indemnification obligation under the Agreement or applicable law regarding data protection or privacy, shall be limited to the amounts paid to Company under the Agreement within twelve (12) months preceding the event that gave rise to the claim. This limitation of liability is cumulative and not per incident; (b) In no event will Company and/or Company Affiliates and/or their third-party providers, be liable under, or otherwise in connection with this DPA for: (i) any indirect, exemplary, special, consequential, incidental or punitive damages; (ii) any loss of profits, business, or anticipated savings;  (iii) any loss of, or damage to data, reputation, revenue or goodwill; and/or (iv) the cost of procuring any substitute goods or services; and (c) The foregoing exclusions and limitations on liability set forth in this Section shall apply: (i) even if Company, Company Affiliates or third-party providers, have been advised, or should have been aware, of the possibility of losses or damages; (ii) even if any remedy in this DPA fails of its essential purpose; and (iii) regardless of the form, theory or basis of liability (such as, but not limited to, breach of contract or tort).

12.1. Amendments. This DPA may be amended at any time by a written instrument duly signed by each of the Parties.

Legal Effect.

Company may assign this DPA or its rights or obligations hereunder to any Affiliate thereof, or to a successor or any Affiliate thereof, in connection with a merger, consolidation or acquisition of all or substantially all of its shares, assets or business relating to this DPA or the Agreement. Any Company obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company.