Effective Date: August 9, 2021
This OnepageClick Data Processing Addendum (this “DPA”) forms part of and is subject to the provisions of, the OnepageClick Terms of Service. Capitalized terms that are not defined in this DPA have the meanings set forth in the Terms of Service.
1. Additional Definitions.
The following definitions apply solely to this DPA:
a. the terms “controller”, “data subject”, “personal data”, “process,” “processing” and “processor” have the meanings given to these terms in EU Data Protection Law.
b. “Breach” means a breach of the Security Measures resulting in access to OnepageClick’s equipment or facilities storing Your Controlled Data and the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Your Controlled Data transmitted, stored, or processed by OnepageClick on your behalf and instructions through the Services.
c. “Content” means your User Content and any content provided to us from your End Users, including without limitation text, photos, images, audio, video, code, and any other materials.
d. “EU Data Protection Law” means any data protection or data privacy law or regulation of Switzerland, the United Kingdom, or any European Economic Area (“EEA”) country applicable to Your Controlled Data, including, as applicable, the GDPR and the e-Privacy Directive 2002/58/EC.
e. “GDPR” means the EU General Data Protection Regulation 2016/679.
f. “Security Measures” means the technical and organizational security measures.
g. “SCCs” means either: (i) the standard contractual clauses (without the optional clauses) for the transfer of personal data to data processors established in third countries adopted by the European Commission decision (C(2010)593) of 5 February 2010 (as may be amended from time to time by European Commission decision); or (ii) such other form of European Commission standard contractual clauses for transfers of personal data to processors adopted by the European Commission pursuant to the GDPR as notified by OnepageClick to you; together, in either case with the details set out in Section 3 of this DPA serving as Appendix 1 and the Security Measures (as changed from time to time in accordance with this DPA) serving as Appendix 2 to the SCCs.
h. “Sub-Processor” means an entity engaged by OnepageClick to process Your Controlled Data.
j. “Your Controlled Data” means the personal data in the Content OnepageClick processes on your behalf and instructions as part of the Services, but only to the extent that you are subject to EU Data Protection Law in respect of such personal data. Your Controlled Data does not include personal data when controlled by us, including without limitation data we collect (including IP address, device/browser details, and web pages visited prior to coming to Your Site) with respect to your End Users’ interactions with Your Site through their browser and technologies like cookies.
2. Applicability.
This DPA only applies to you if you or your End Users are data subjects located within the EEA, United Kingdom, or Switzerland and only applies in respect of Your Controlled Data. You agree that OnepageClick is not responsible for personal data that you have elected to process through Third Party Services or outside of the Services, including the systems of any other third-party cloud services, offline or on-premises storage.
3. Details of Data Processing.
3.1 Subject Matter. The subject matter of the data processing under this DPA is Your Controlled Data.
3.2 Duration. As between you and us, the duration of the data processing under this DPA is determined by you.
3.3 Purpose. The purpose of the data processing under this DPA is the provision of the Services initiated by you from time to time.
3.4 Nature of the Processing / Processing Operations. The Services as described in the Agreement and initiated by you from time to time.
3.5 Type / Categories of Personal Data. Your Controlled Data relating to you, your End Users, or other individuals whose personal data is included in Content which is processed as part of the Services in accordance with instructions given through the Services.
3.6 Special Categories of Data. Any special categories of data relating to you, your End Users, or other individuals whose special categories of data are, where permitted by the Terms of Service, including in Content which is processed as part of the Services in accordance with instructions given through the Services.
3.7 Categories of Data Subjects. You, Your End Users, and any other individuals whose personal data is included in Content.
4. Processing Roles and Activities.
4.1 OnepageClick as Processor and You as Controller. You are the controller and OnepageClick is the processor of Your Controlled Data.
4.2 OnepageClick as Controller. OnepageClick may also be an independent controller for some personal data relating to you or your End Users. Please see our Privacy Policy and Terms of Service for details about this personal data which we control. We decide how to use and process that personal data independently and use it for our own purposes. When we process personal data as a controller, you acknowledge and confirm that the Agreement does not create a joint-controller relationship between you and us. If we provide you with personal data controlled by us, such as in any access to data regarding your End Users’ interactions with Your Site, you receive that as an independent data controller and are responsible for compliance with EU Data Protection Law in that regard.
4.3 Description of Processing Activities. We will process Your Controlled Data for the purpose of providing you with the Services, as may be used, configured, or modified through the Services (the “Purpose”). For example, depending on how you use the Services, we may process Your Controlled Data in order to: (a) enable you to integrate content or features from a social media platform on Your Site; or (b) email your End Users on your behalf.
4.4 Compliance with Laws. You will ensure that your instructions comply with all laws, regulations, and rules applicable in relation to Your Controlled Data and that Your Controlled Data is collected lawfully by you or on your behalf and provided to us by you in accordance with such laws, rules, and regulations. You will also ensure that the processing of Your Controlled Data in accordance with your instructions will not cause or result in us or you breaching any laws, rules, or regulations (including EU Data Protection Law). You are responsible for reviewing the information available from us relating to data security pursuant to the Agreement and making an independent determination as to whether the Services meet your requirements and legal obligations as well as your obligations under this DPA. OnepageClick will not access or use Your Controlled Data except as provided in the Agreement, as necessary to maintain or provide the Services or as necessary to comply with the law or binding order of a governmental, law enforcement, or regulatory body.
5. Our Processing Responsibilities.
5.1 How We Process. We will process Your Controlled Data for the Purpose and in accordance with the Agreement or instructions you give us through the Services. You agree that the Agreement and the instructions given through the Services are your complete and final documented instructions to us in relation to Your Controlled Data. Additional instructions outside the scope of this DPA require a prior written agreement between you and us, including the agreement on any additional fees payable by you to us for carrying out such instructions. We will promptly inform you if in our opinion, your instructions infringe EU Data Protection Law, or if we are unable to comply with your instructions. We will notify you when applicable laws prevent us from complying with your instructions, except if such disclosure is prohibited by applicable law on important grounds of public interest, such as a prohibition under the law to preserve the confidentiality of a law enforcement investigation or request.
5.2 Notification of Breach. We will provide you notice without undue delay after becoming aware of and confirming the occurrence of a Breach for which notification to you is required under EU Data Protection Law. We will assist you in complying with your notification obligations under Articles 33 and 34 of the GDPR, provide you with such information about the Breach as we are reasonably able to disclose to you, taking into account the nature of the Services, the information available to us and any restrictions on disclosing the information such as for confidentiality. Our obligation to report or respond to a Breach under this Section is not and will not be construed as an acknowledgment by OnepageClick of any fault or liability of OnepageClick with respect to the Breach. Despite the foregoing, OnepageClick’s obligations under this Section do not apply to incidents that are caused by you, any activity on your Account(s), and/or Third-Party Services.
5.3 Notification of Inquiry or Complaint. We will provide you notice, if permitted by applicable law, upon receiving an inquiry or complaint from an End User, or another individual whose personal data is included in your Content, or a binding demand (such as a court order or subpoena) from a government, law enforcement, regulatory or other body in respect of Your Controlled Data.
5.4 Reasonable Assistance with Compliance. We will, to the extent that you cannot reasonably do so through the Services or otherwise, provide reasonable assistance to you in respect of the fulfillment of your obligation as a controller to respond to requests by data subjects under Chapter 3 of the GDPR, taking into account the nature of the Services and information available to us. You will be responsible for our reasonable costs arising from our provision of such assistance.
5.5 Security Measures and Safeguards. We will maintain the Security Measures and the safeguards. We may change or update the Security Measures or safeguards but will not do so in a way that adversely affects the security of Your Controlled Data. We will take steps to ensure that any natural person acting under our authority who has access to Your Controlled Data does not process it except on our instructions unless such person is required to do so under applicable law, and that personnel authorized by us to process Your Controlled Data have committed themselves to relevant confidentiality obligations or are under an appropriate statutory obligation of confidentiality.
5.6 Sub-Processors. You agree that we can share Your Controlled Data with Sub-Processors in order to provide you the Services. We will impose contractual obligations on our Sub-Processors, and contractually obligate our Sub-Processors to impose contractual obligations on any further sub-contractors which they engage to process Your Controlled Data, which provide the same level of data protection for Your Controlled Data in all material respects as the contractual obligations imposed in this DPA, to the extent applicable to the nature of the Services provided by such Sub-Processor. A list of our current Sub-Processors is available upon request by sending an email to privacy@OnepageClick.com. Provided that your objection is reasonable and related to data protection concerns, you may object to any Sub-Processor by sending an email to privacy@OnepageClick.com. If you object to any Sub-Processor and your objection is reasonable and related to data protection concerns, we will use commercially reasonable efforts to make available to you a means of avoiding the processing of Your Controlled Data by the objected-to Sub-Processor. If we are unable to make available such suggested change within a reasonable period of time, we will notify you and if you still object to our use of such Sub-Processor, you may cancel or terminate the Services or, if possible, the portions of the Services that involve use of such Sub-Processor. Except as set forth in this Section 5.6, if you object to any Sub-Processors, you may not use or access the Services. You consent to our use of Sub-Processors as described in this Section 5.6. Except as set forth in this Section 5.6 or as you may otherwise authorize, we will not permit any Sub-Processor to access Your Controlled Data. Please note that if you are a Non-US User, Creavista, Inc. is one of our Sub-Processors. OnepageClick will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of any Sub-Processor or their further sub-contractors that process Your Controlled Data and cause OnepageClick to breach any of OnepageClick’s obligations under this DPA, solely to the extent that OnepageClick would be liable under the Agreement if the act or omission was OnepageClick’s own.
5.7 OnepageClick Audits. OnepageClick may (but is not obliged to) use external or internal auditors to verify the adequacy of our Security Measures.
5.8 Customer Audits and Information Requests. You agree to exercise any right you may have to conduct an audit or inspection by instructing OnepageClick to carry out the audit described in Section 5.7. You agree that you may be required to agree to a non-disclosure agreement with OnepageClick before we share any such report or outcome from such audit with you and that we may redact any such reports as we consider appropriate. If OnepageClick does not follow such instruction or if it is legally mandatory for you to demonstrate compliance with EU Data Protection Law by means other than reviewing a report from such an audit, you may only request a change in the following way:
a. First, submit a request for additional information in writing to OnepageClick, specifying all details required to enable OnepageClick to review this request effectively, including without limitation the information being requested, what form you need to obtain it in, and the underlying legal requirement for the request (the “Request”). You agree that the Request will be limited to information regarding our Security Measures.
b. Within a reasonable time after we have received and reviewed the Request, you and we will discuss and work in good faith towards agreeing on a plan to determine the details of how the Request can be addressed. You and we agree to use the least intrusive means for OnepageClick to verify OnepageClick’s compliance with the Security Measures in order to address the Request, taking into account applicable legal requirements, information available to or that may be provided to you, the urgency of the matter and the need for OnepageClick to maintain uninterrupted business operations and the security of its facilities and protect itself and its customers from risk and to prevent disclosure of information that could jeopardize the confidentiality of OnepageClick or our users’ information.
You will pay our costs in considering and addressing any Request. Any information and documentation provided by OnepageClick or its auditors pursuant to this Section 5.8 will be provided at your cost. If we decline to follow any instruction requested by you regarding audits or inspections, you may cancel any affected Paid Services.
5.9 Questions. Upon your reasonable requests to us for information regarding our compliance with the obligations set forth in this DPA, we shall, where such information is not otherwise available to you, provide you with written responses, provided that you agree not to exercise this right more than one (1) time per calendar year (unless it is necessary for you to do so to comply with EU Data Protection Law). The information to be made available by OnepageClick under this Section 5.9 is limited to solely that information necessary, taking into account the nature of the Services and the information available to OnepageClick, to assist you in complying with your obligations under the GDPR in respect of data protection impact assessments and prior consultation. You agree that you may be required to agree to a non-disclosure agreement with OnepageClick before we share any such information with you.
5.10 Requests. You can delete or access a copy of some of Your Controlled Data through the Services. For any of Your Controlled Data which may not be deleted or accessed through the Services, upon your written request, we will, with respect to any of Your Controlled Data in our or our Sub-Processor’s possession that we can associate with a data subject, subject to the limitations described in the Agreement and unless prohibited by applicable law or the order of a governmental, law enforcement or regulatory body: (a) return such data and copies of such data to you provided that you make such request within no more than ninety (90) days after the cancellation of the applicable Paid Services; or (b) delete, and request that our Sub-Processors delete, such data (excluding in the case of (a) or (b) any of such data which we maintain in order to comply with applicable law or as otherwise set forth in the Agreement). Otherwise, we will delete Your Controlled Data in accordance with our data retention policy.
6. Data Transfers.
6.1 Taking into account, in particular, the Security Measures and safeguards provided for in this DPA and the specific circumstances, you instruct OnepageClick to transfer Your Controlled Data away from the country in which such data was originally collected to other countries globally in which OnepageClick or any sub-processors operate, in particular, to the US. Unless such transfer is otherwise permitted under EU Data Protection Law, the SCCs apply between you and Creavista, Inc. to Your Controlled Data that is transferred, either directly or via onward, to any country not recognized under EU Data Protection Law as providing an adequate level of protection for Your Controlled Data. You and Creavista, Inc. are deemed to have executed and agreed to the SCCs upon the earlier of (i) you agreeing to the Agreement, including any future amendments; or (ii) this DPA applying to you and/or your use of the Services in accordance with Section 2 of this DPA.
6.2 Where the SCCs apply:
a. you are the “data exporter” and Creavista, Inc. is the “data importer” as those terms are defined in the SCCs;
b. the ‘data subjects’, ‘categories of data’, ‘special categories of data and ‘processing operations’ as identified in Section 3 of this DPA shall serve as Appendix 1 of the SCCs;
c. the technical and organizational measures implemented by Creavista, Inc. are the Security Measures (as may be changed from time to time, for example, to reflect technological developments, subject to Section 5.5 of this DPA) and are binding on Creavista, Inc. as if set out in Appendix 2 of the SCCs;
d. you will comply with the SCCs and, in countries where regulatory approval is required for use of the SCCs, you are responsible for obtaining such approval;
e. you agree that any sub-processor agreement to be provided to you under clause 5(j) of the SCCs is to be provided to you on your request only, is confidential, and will be limited to the data protection provisions related to Your Controlled Data with commercial information redacted;
f. the general consent was given under Section 5.6 of this DPA to the use of a sub-processor also consents under clause 11 of the SCCs;
g. you will use your rights of information, reports, and audit under this DPA to satisfy any requirements you have for an audit in place of your audit rights under the SCCs, unless your audit requirements cannot reasonably be satisfied in this way in which case Creavista, Inc. and you will mutually agree upon the details of the other means of audit (using the least intrusive means possible), including without limitation, as relevant, timing, duration, scope, control, manner, evidence requirements, auditor identity and fees (including for time expended by Creavista, Inc.) for the other means of audit under the SCCs. Creavista, Inc. will not use this to unreasonably delay the performance of the other means of audit;
h. you agree that Your Controlled Data will, for the purposes of clause 12(1) of the SCCs, be deleted in the manner described in Section 5.10 of this DPA, and certification of deletion is only required under clause 12(1) of the SCCs upon your request;
i. references in the SCCs to provisions of Directive 95/46/EC are treated as references to the relevant and appropriate provision of the GDPR; and
j. Creavista, Inc. is entitled to rely upon the provisions of the Agreement (including this DPA) as if a party thereto.
6.3 Where the SCCs apply:
a. OnepageClick USA agrees to take responsibility for any breach by Creavista, Inc. of the SCCs as if it was a breach by OnepageClick USA of the Agreement. If you are a Non-US User, you accordingly agree to take any claim or action for damages for breach of the SCCs against OnepageClick USA and not Creavista, Inc. and will indemnify and pay to OnepageClick USA all damages awarded against Creavista, Inc. and any costs and expenses incurred or paid out by Creavista, Inc. and/or OnepageClick USA in defending, settling or compromising any such action or claim for damages. This does not affect your rights to enforce the SCCs against Creavista, Inc. or to obtain any protective relief against it in respect of its obligations under the SCCs.
b. Creavista, Inc. is entitled to rely upon Section 7 of this DPA and the limitations and exclusions of liability and disclaimers in the Agreement as if it was a party to the Agreement with you and the disclaimers, limitations, and exclusions of liability in the Agreement will apply so that the combined liability of OnepageClick USA and Creavista, Inc. does not in aggregate exceed the cap on liability in the Agreement.
c. OnepageClick is entitled to sever and disapply or, in accordance with the amendment clause of the Agreement, modify this Section 6 of the DPA, and Creavista, Inc. is entitled to terminate or replace the SCCs, in order for Creavista, Inc. or OnepageClick to implement an alternative transfer mechanism recognized by EU Data Protection Law.
7. Liability.
The liability of each party under this DPA is subject to the exclusions and limitations of liability set out in the Agreement. You agree that any regulatory penalties or claims by data subjects or others incurred by OnepageClick USA or Creavista, Inc. in relation to Your Controlled Data that arise as a result of, or in connection with, your failure to comply with your obligations under the Agreement, this DPA or EU Data Protection Law shall reduce as applicable, OnepageClick USA’s and/or Creavista, Inc.’s maximum aggregate liability to you in the same amount as such regulatory penalties, claims and/or liability incurred by us as a result.
8. Conflict.
In the event of a conflict between this DPA and the Terms of Service, this DPA will control. Where the SCCs apply, the SCCs take priority over the Terms of Service and this DPA to the extent of any conflict or inconsistency and nothing in the Terms of Service or this DPA varies or modifies the SCCs or affects the rights of any supervisory authority or data subject under the SCCs or EU Data Protection Law.
9. Miscellaneous.
You are responsible for any costs and expenses arising from OnepageClick USA’s and Creavista, Inc.’s compliance with your instructions or requests pursuant to the Agreement (including this DPA) which fall outside the standard functionality made available generally through the Services.
If you are a Non-US User, Creavista, Inc. is (a) a party to this DPA solely to acknowledge and obtain the benefit of the provisions of Section 6 and Section 7 and accept its entry into the SCCs; and (b) not otherwise a party to the Agreement and has no obligations or liability under or in connection with the Agreement (including this DPA) in any respect (whether in contract, tort, negligence or otherwise), provided this does not limit or affect its obligations under the SCCs.OnepageClick