This Data Processing Addendum ("DPA” or “Addendum") forms part of the Terms of Service ("Agreement") between BigMarker, LLC ("BigMarker") and the customer entity that is a party to the Agreement ("Customer").
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect. In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum.
In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
"Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity;
"Agreement" means BigMarker’s Terms of Service, which govern the provision of the Services to Customer, as such terms may be updated by BigMarker from time to time.
"Applicable Laws" means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;
"Customer Group Member" means Customer or any Customer Affiliate;
"Control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term "Controlled" shall be construed accordingly.
"Contracted Processor" means BigMarker or a Subprocessor;
"Customer Data" means any Personal Data that BigMarker processes on behalf of Customer as a Data Processor in the course of providing Services, as more particularly described in this DPA.
"Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
"EEA" means the European Economic Area;
"EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR ;
"GDPR" means EU General Data Protection Regulation 2016/679;
"Group" means any and all Affiliates that are part of an entity's corporate group.
"Personal Data" means any information relating to an identified or identifiable natural person."Processing" has the meaning given to it in the GDPR and "process", "processes" and "processed" shall be interpreted accordingly.
"Restricted Transfer" means: a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established below;
"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
"Services" means any product or service provided by BigMarker to Customer pursuant to the Agreement."Standard Contractual Clauses" means the contractual clauses set out in Annex 2, amended as indicated (in square brackets and italics) in that Annex and under section 13.4;
"Subprocessor" means any person (including any third party and any Vendor Affiliate, but excluding an employee of Vendor or any of its subcontractors) appointed by or on behalf of Vendor or any Vendor Affiliate to Process Personal Data on behalf of any Company Group Member in connection with the Principal Agreement; and
The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
Any claims against BigMarker or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise. Customer further agrees that any regulatory penalties incurred by BigMarker in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce BigMarker’s liability under the Agreement as if it were liability to the Customer under the Agreement.
No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
This DPA applies where and only to the extent that BigMarker processes Customer Data that originates from the EEA and/or that is otherwise subject to EU Data Protection Law on behalf of Customer as Data Processor in the course of providing Services pursuant to the Agreement.
Role of the Parties. As between BigMarker and Customer, Customer is the Data Controller of Customer Data, and BigMarker shall process Customer Data only as a Data Processor acting on behalf of Customer.
Customer Responsibility. Within the scope of the Agreement and in its use of the services, Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data. For the avoidance of doubt, Controller’s instructions for the Processing of Personal Data shall comply with the Data Protection Law. This DPA is Customer’s complete and final instruction to BigMarker in relation to Personal Data and that additional instructions outside the scope of DPA would require prior written agreement between the parties. Instructions shall initially be specified in the Agreement and may, from time to time thereafter, be amended, amplified or replaced by Controller in separate written instructions (as individual instructions).
Controller shall inform Processor without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data.
Customer Processing of Customer Data. Customer agrees that (i) it shall comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to BigMarker; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for BigMarker to process Customer Data and provide the Services pursuant to the Agreement and this DPA.
BigMarker Processing of Customer Data. BigMarker shall process Customer Data only for the purposes described in this DPA and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to BigMarker in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and BigMarker.
Details of Data Processing
(a) Subject matter: The subject matter of the data processing under this DPA is the Customer Data.
(b) Duration: As between BigMarker and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
(c) Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of BigMarker's obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
(d) Nature of the processing: BigMarker provides a webinar, video, and virtual conference hosting service, automation and marketing platform and other related services, as described in the Agreement.
(e) Categories of data subjects: Any individual accessing and/or using the Services through the Customer's account ("Users"); and any individual: (i) whose email address is included in the Customer's Distribution List; (ii) whose information is stored on or collected via the Services, or (iii) to whom Users send emails or otherwise engage or communicate with via the Services (collectively, "Subscribers").
(f) Types of Customer Data:
(i) Customer and Users: identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility);
(ii) Subscribers: identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address), personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information).
Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that BigMarker shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered Personal Data under Data Protection Laws, BigMarker is the Data Controller of such data and accordingly shall process such data in accordance with BigMarker’s Privacy Policy and Data Protection Laws.
Tracking Technologies. Customer acknowledges that in connection with the performance of the Services, BigMarker employs the use of cookies, unique identifiers, web beacons and similar tracking technologies ("Tracking Technologies"). Customer shall maintain appropriate notice, consent, opt-in and opt-out mechanisms as are required by Data Protection Laws to enable BigMarker to deploy Tracking Technologies lawfully on, and collect data from, the devices of Subscribers (defined below) in accordance with and as described in BigMarker’s Terms of Service.
Authorized Sub-processors. Customer agrees that BigMarker may engage Sub-processors to process Customer Data on Customer's behalf. The Sub-processors currently engaged by BigMarker and authorized by Customer are listed in Annex A.
Sub-processor Obligations. BigMarker shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Customer Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause BigMarker to breach any of its obligations under this DPA.
Security Measures. BigMarker shall implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data, in accordance with BigMarker's security standards described in Annex B ("Security Measures").
Updates to Security Measures. Customer is responsible for reviewing the information made available by BigMarker relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that BigMarker may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
Confidentiality of processing. BigMarker shall ensure that any person who is authorized by BigMarker to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
Security Incident Response. Upon becoming aware of a Security Incident, BigMarker shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
Deletion on termination. Upon termination or expiration of the Agreement, BigMarker shall (at Customer's election) delete or return to Customer all Customer Data (including copies) in its possession or control, except that this requirement shall not apply to the extent BigMarker is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data BigMarker shall securely isolate, protect from any further processing and eventually delete in accordance with BigMarker’s deletion policies, except to the extent required by applicable law.
Data center locations. Unless otherwise agreed in a modification or addendum to this Agreement, BigMarker may transfer and process Customer Data anywhere in the world where BigMarker, its Affiliates or its Sub-processors maintain data processing operations. BigMarker shall at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.
Alternative Transfer Mechanism. The parties agree that the data export solution identified in this DPA shall not apply if and to the extent that BigMarker adopts an alternative data export solution for the lawful transfer of Personal Data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which Personal Data is transferred).
BigMarker shall (i) provide an up-to-date list of the Sub-processors it has appointed upon written request from Customer; and (ii) notify Customer (for which email shall suffice) if it adds or removes Sub-processors at least 10 days prior to any such changes.
Customer may object in writing to BigMarker’s appointment of a new Sub-processor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Customer may suspend or terminate the Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).
The Services provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Customer Data, which Customer may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Customer Data within the Services, BigMarker shall (at Customer's expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to BigMarker, BigMarker shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If BigMarker is required to respond to such a request, BigMarker shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
If a law enforcement agency sends BigMarker a demand for Customer Data (for example, through a subpoena or court order), BigMarker shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, BigMarker may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then BigMarker shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless BigMarker is legally prohibited from doing so.
To the extent BigMarker is required under EU Data Protection Law, BigMarker shall (at Customer's expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
To the extent BigMarker processes Customer Data originating from and protected by Data Protection Laws in one of the jurisdictions listed in Annex D, then the terms specified in Annex D with respect to the applicable jurisdiction(s) (“Jurisdiction-Specific Terms”) apply in addition to the terms of this DPA. In the event of any conflict or ambiguity between the Jurisdiction-Specific Terms and any other terms of this DPA, the applicable Jurisdiction-Specific Terms will take precedence, but only to the extent of the Jurisdiction-Specific Terms’ applicability to BigMarker.
11.1 Each party’s and all of its Affiliates’ liability taken together in the aggregate arising out of or related to this DPA (including the SCCs) shall be subject to the exclusions and limitations of liability set forth in the Agreement.
11.2 Any claims made against BigMarker or its Affiliates under or in connection with this DPA (including, where applicable, the SCCs) shall be brought solely by the Customer entity that is a party to the Agreement.
11.3 In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.
12.1 This DPA shall remain in effect for as long as BigMarker carries out Customer Data processing operations on behalf of Customer or until termination of the Agreement (and all Customer Data has been returned or deleted in accordance with Section 7.1 above).
12.2 The parties agree that this DPA shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service.
12.3 In the event of any conflict or inconsistency between this DPA and the BigMarker Standard Terms of Use, the provisions of the following documents (in order of precedence) shall prevail: (i) SCCs; then (ii) this DPA; and then (iii) the BigMarker Standard Terms of Use.
12.4 Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.
12.5 Notwithstanding anything to the contrary in the Agreement (including this DPA), BigMarker shall have a right to collect, use and disclose Service Data for its legitimate business purposes, such as: (i) for accounting, tax, billing, audit, and compliance purposes; (ii) to provide, develop, optimize and maintain the Service; (iii) to investigate fraud, spam, wrongful or unlawful use of the Service; and/or (iiii) as required by applicable law.To the extent any such Service Data is considered personal data under Data Protection Laws, BigMarker shall be responsible for and shall process such data in accordance with the BigMarker Privacy Policy and Data Protection Laws. For the avoidance of doubt, this DPA shall not apply to Service Data.
12.6 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
12.7 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
(a) Subject matter: The subject matter of the data processing under this DPA is the Customer Data.
(b) Duration of processing: BigMarker will process Customer Data as outlined in Section 7 (Return or Deletion of Data) of this DPA.
(c) Purpose of processing: BigMarker shall only process Customer Data for the Permitted Purposes, which shall include: (i) processing as necessary to provide the Service in accordance with the Agreement; (ii) processing initiated by Customer in its use of the Service; and (iii) processing to comply with any other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement.
(d) Nature of the processing: BigMarker provides a webinar and video service, automation and marketing platform and other related services, as more particularly described in the Agreement.
(e) Categories of data subjects: (i) Members; and (ii) Contacts, each as defined in the BigMarker Privacy Policy.
(f) Types of Customer Data: Customer may upload, submit or otherwise provide certain personal data to the Service, the extent of which is typically determined and controlled by Customer in its sole discretion, and may include the following types of personal data: Members: Identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility); Contacts: Identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address); personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information).
(g) Sensitive Data: BigMarker does not want to, nor does it intentionally, collect or process any Sensitive Data in connection with the provision of the Service.
(h) Processing Operations: Customer Data will be processed in accordance with the Agreement (including this DPA) and may be subject to the following processing activities: Storage and other processing necessary to provide, maintain and improve the Service provided to Customer pursuant to the Agreement; and/orDisclosures in accordance with the Agreement and/or as compelled by applicable law.
BigMarker uses its Affiliates and a range of third party Sub-processors to assist it in providing the Services (as described in the Agreement). These Sub-processors set out below provide cloud hosting and storage services; content delivery and review services; assist in providing customer support; as well as incident tracking, response, diagnosis and resolution services.
Amazon (Washington, USA), Cloud Services Provider
Amazon (California, USA), iOS Application Platform
Google (California, USA), Cloud Services Provider
Hubspot (Massachusetts, USA), CRM/Customer Service Management Platform
Intercom (California, USA), CRM/Customer Service Management Platform
Microsoft (Washington, USA), Cloud Services Provider
ZenDesk (California, USA), CRM/Customer Service Management Platform
As a company that takes data security and privacy very seriously, we recognize that BigMarker’s information security practices are important to you. While we don’t like to expose too much detail around our practices (as it can empower the very people we are protecting ourselves against), we have provided some general information below to give you confidence in how we secure the data entrusted to us.
Data Center Security
BigMarker delivers millions of online events for millions of users. We have a global infrastructure, scaled across different world-class data centers around the United States. Our data centers manage physical security 24/7 with biometric scanners and the usual high tech stuff that data centers always brag about. We have DDOS mitigation in place at all of our data centers. We have a documented "in case of nuclear attack on a data center" infrastructure continuity plan.
Protection from Data Loss, Corruption
All databases are kept separate and dedicated to preventing corruption and overlap. We have multiple layers of logic that segregate user accounts from each other. Account data is mirrored and regularly backed up off site.
Application Level Security
BigMarker account passwords are hashed. Our own staff can't even view them. If you lose your password, it can't be retrieved—it must be reset. All login pages (from our website and mobile website) pass data via TLS. The entire BigMarker application is encrypted with TLS. Login pages and logins via the BigMarker API have brute force protection. We perform regular external security penetration tests using established independent vendors. The tests involve high-level server penetration tests, in-depth testing for vulnerabilities inside the application, and social engineering drills.
Internal IT Security
BigMarker offices are secured and monitored with infrared cameras throughout. Our office network is heavily segmented and centrally monitored. We have a dedicated internal security team that constantly monitors our environment for vulnerabilities. They perform penetration testing and social engineering exercises on our environment and our employees.
Internal Protocol and Education
We continuously train employees on best security practices, including how to identify social engineering, phishing scams, and hackers. Employees on teams that have access to customer data (such as tech support and our engineers) undergo criminal history and credit background checks prior to employment. All employees sign a Privacy Safeguard Agreement outlining their responsibility in protecting customer data. In order to protect our company from a variety of different losses, BigMarker has established a comprehensive insurance program. Coverage includes, but is not exclusive to: coverage for cyber incidents, data privacy incidents (including regulatory expenses), general error and omission liability coverage, excess cyber liability coverage, property and business interruption coverage, as well as international commercial general liability coverage.
Financial Processing Security
BigMarker’s credit card processing vendor uses security measures to protect your information both during the transaction and after it is complete. Our vendor is certified as compliant with card association security initiatives, including the Visa Cardholder Information Security and Compliance (CISP), MasterCard® Site Data Protection Program (SDP), and Discovery Information Security and Compliance (DISC).
Protecting Ourselves Against Compromised User Accounts
If a user’s computer gets compromised and someone gets into your BigMarker account, that's not good for either of us. We take measures to protect ourselves against the risk of compromised user accounts. We monitor and will automatically suspend accounts for signs of irregular or suspicious login activity. Certain changes to your account, such as to your password, will trigger email notifications to the account owner. We monitor accounts and campaign activity for signs of abuse.
In addition to our scalable algorithms, we employ another layer of human reviewers, who monitor for anomalous account and email activity. We make Multi-Factor Authentication (MFA) available to our customers and offer a discount on accounts that engage this feature. We provide the ability to establish tiered-levels of access within accounts.
Investing in Your Privacy
Our Legal team partners with our developers and engineers to make sure our products and features comply with applicable international spam and privacy laws. We retain a law firm to consult on EU privacy issues. We undergo annual verification with the Privacy Shield verification program or execute the GDPR Standard Contractual Clauses. Our attorneys and Legal Compliance team are active members of the International Association of Privacy Professionals (IAPP).
Responsible Disclosure
If you’ve discovered a vulnerability in the BigMarker application, please don’t share it publicly. Instead, please submit a report to privacy@bigmarker.com. We review all security concerns brought to our attention, and we take a proactive approach to emerging security issues. Every day, new security issues and attack vectors are created. BigMarker strives to stay on top of the latest security developments both internally and by working with external security researchers and companies. We appreciate the community’s efforts in creating a more secure web.If you believe your account has been compromised or you are seeing suspicious activity on your account please email privacy@bigmarker.com.
All defined terms used in this Annex C shall have the meaning given to them in the SCCs unless otherwise defined in this Annex.
Appendix 3 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed by the parties. This Appendix sets out the parties' interpretation of their respective obligations under specific Clauses identified below.
Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses. For the purposes of this Appendix, "DPA" means the Data Processing Addendum in place between data importer and data exporter and to which these Clauses are incorporated and "Agreement" shall have the meaning given to it in the DPA.
Clause 5(a): Suspension of data transfers and termination
The parties acknowledge that data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses. The parties acknowledge that if data importer cannot provide such compliance for whatever reason, it agrees to promptly inform the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the Clauses. If the data exporter intends to suspend the transfer of personal data and/or terminate these Clauses, it shall endeavour to provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”). If after the Cure Period the data importer has not or cannot cure the non-compliance then the data exporter may suspend or terminate the transfer of personal data immediately. The data exporter shall not be required to provide such notice in instances where it considers there is a material risk of harm to data subjects or their personal data.
Clause 5(f): Audit
Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in Section 5 (Security Reports and Audits) of the DPA.
Clause 5(j): Disclosure of subprocessor agreements
The parties acknowledge the obligation of the data importer to send promptly a copy of any onward subprocessor agreement it concludes under the Clauses to the data exporter. The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.
Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably can in connection with such subprocessing agreement to data exporter.
Clause 6: Liability
Any claims brought under the Clauses shall be subject to the terms and conditions, including but not to limited to, the exclusions and limitations set forth in the Agreement. In no event shall any party limit its liability with respect to any data subject rights under these Clauses.
Clause 11: Onward subprocessing
The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled "FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC" the data exporter may provide a general consent to onward subprocessing by the data importer.
Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors. Such consent is conditional on data importer’s compliance with the requirements set out in Section 3 (Sub-processing) of the DPA.
Europe:
Objection to Sub-processors. Customer may object in writing to BigMarker’s appointment of a new Sub-processor within five (5) calendar days of receiving notice in accordance with Section 3.1 of DPA, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, BigMarker will, at its sole discretion, either not appoint such Sub-processor, or permit Customer to suspend or terminate the affected Service in accordance with the termination provisions in the Agreement without liability to either party (but without prejudice to any fees incurred by Customer prior to suspension or termination).
California:
The definitions of: “controller” includes “Business”; "processor" includes “Service Provider”; “data subject” includes “Consumer”; “personal data” includes “Personal Information”; in each case as defined under CCPA.
For this “California” section of Annex D only, “BigMarker Services” means the suite of marketing tools and insights available for BigMarker Customers to use, including without limitation, email campaign management and other related digital communications, analytics and tools made available through the BigMarker online marketing platform, as may be further described in the App and/or on the BigMarker Site.
For this “California” section of Annex D only, “Permitted Purposes” shall include processing Customer Data only for the purposes described in this DPA and in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, as otherwise agreed in writing, or as otherwise may be permitted for “service providers” under the CCPA.
BigMarker’s obligations regarding data subject requests, as described in Section 8 (Data Subject Rights and Cooperation) of this DPA, apply to Consumer’s rights under the CCPA.
Notwithstanding any use restriction contained elsewhere in this DPA, BigMarker shall process Customer Data only to perform the BigMarker Services, for the Permitted Purposes and/or in accordance with Customer’s documented lawful instructions, except where otherwise required by applicable law.
BigMarker may de-identify or aggregate Customer Data as part of performing the Service specified in this DPA and the Agreement.
Where Sub-processors process the personal data of Customer contacts, BigMarker takes steps to ensure that such Sub-processors are Service Providers under the CCPA with whom BigMarker has entered into a written contract that includes terms substantially similar to this DPA or are otherwise exempt from the CCPA’s definition of “sale”. BigMarker conducts appropriate due diligence on its Sub-processors.
Canada:
BigMarker takes steps to ensure that BigMarker's Sub-processors, as described in Section 3 (Sub-processing) of the DPA, are third parties under PIPEDA, with whom BigMarker has entered into a written contract that includes terms substantially similar to this DPA.
BigMarker conducts appropriate due diligence on its Sub-processors.BigMarker will implement technical and organizational measures as set forth in Section 4 (Security) of the DPA.
Effective May 1, 2020
