WPMktgEngine Terms and Conditions of Use
CONTINUITY BILLING PLAN NOTICE: ALL ACCOUNT HOLDERS WILL BE BILLED MONTHLY UNTIL YOU CANCEL. IF YOU ELECT TO PARTICIPATE IN OUR FREE TRIAL SERVICE, ON THE LAST DAY OF THE TRIAL, IF YOU HAVE NOT CANCELLED THE TRIAL, YOUR ACCOUNT WILL BE AUTOMATICALLY CONVERTED TO A PAID ACCOUNT AND YOU WILL BE BILLED FOR THE SERVICE UNTIL YOU CANCEL.
GENOO, LLC (“GENOO”) IS WILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON “I ACCEPT”, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR PERSON, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR PERSON TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY OR PERSON, THEN GENOO IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE.
WPMKTGENGINE TERMS OF SERVICE
- ACCEPTANCE OF TERMS
Welcome to WPMKtgEngine (the “Service”), an online marketing service made available by Genoo, LLC (Genoo) . Whether you are an account holder having a WordPress web site and conducting online marketing activities using the tools available through the WPMktgEngine WordPress Plugin (an “Account Holder”), or a user added by an Account Holder (a “User”) to use WPMktgEngine Services on the Account Holders Account, your use of the Service is subject to these Terms of Service (“TOS”). Genoo reserves the right to update and change the TOS from time to time, and will notify Account Holders of the change and effective date via the email designated for the Account Holder. The TOS will also be applicable to the use of the Service on a trial basis. By using the Service, you signify your irrevocable acceptance of this TOS.
- DESCRIPTION OF SERVICE
Genoo provides each Account Holder with Online Marketing Tools, that include but are not limited to Email Marketing, Lead capture, lead nurturing, and overall lead management. The Service is made available via a WordPress Plugin. The Service also includes tools that enable Account Holders and their Users to make up one or more Calls-to-Action (CTA) and place those on the pages and sidebar of your website running WordPress. The type and number of tools you may use depend on the type of account you have and your status as an Account Holder or a User. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new WPMktgEngine tools and resources, shall be subject to the TOS. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You also understand and agree that the Service may include advertisements and that these advertisements are necessary for Genoo to provide the Service. You also understand and agree that the service may include certain communications from WPMktgEngine or Genoo, such as service announcements, administrative messages and the WPMktgEngine Newsletter, and that these communications are considered part of WPMktgEngine membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Genoo properties, shall be subject to the TOS. You agree not to access the Service by any means other than through the interfaces that are provided by Genoo for use in accessing the Service.
In order to use the Service, you must have a valid WPMktgEngine User ID. To be an Account Holder, you must provide WPMktgEngine with a credit card, billing and shipping information and other information (“Registration Data”). Account Holders will choose a password and account designation, as well your website URL for your Account during the Service’s registration process. If you are using the Service as a User, you must also go through the registration process and provide the registration data requested. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify WPMktgEngine of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. WPMktgEngine cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 3. In consideration of use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Genoo has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Genoo has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). YOUR RIGHTS UNDER THIS AGREEMENT ARE PERSONAL TO YOU. YOUR ACCOUNT HOLDER INFORMATION AND USER REGISTRATION ARE NON-TRANSFERABLE.
IF YOU REGISTER TO USE THE SERVICE ON A FREE-TRIAL BASIS, YOU WILL ALSO HAVE TO GO THROUGH THE REGISTRATION PROCESS, INCLUDING ENTERING IN YOUR CREDIT CARD. ON THE LAST DAY OF THE TRIAL, IF YOU HAVE NOT CANCELLED THE TRIAL, THE ACCOUNT WILL BE AUTOMATICALLY CONVERTED TO A PAID ACCOUNT AND YOU WILL BE BILLED FOR THE SERVICE.
- PAYMENT TERMS
4.1. CONTINUITY BILLING PLAN.
ALL ACCOUNT HOLDERS WILL BE BILLED MONTHLY UNTIL YOU CANCEL.
IF YOU ELECT TO PARTICIPATE IN OUR FREE TRIAL SERVICE, ON THE LAST DAY OF THE TRIAL, IF YOU HAVE NOT CANCELLED THE TRIAL, YOUR ACCOUNT WILL BE AUTOMATICALLY CONVERTED TO A PAID ACCOUNT AND YOU WILL BE BILLED FOR THE SERVICE UNTIL YOU CANCEL.
The credit card that Account Holders provide as part of the Registration Data will be automatically and immediately billed. All currency references are in U.S. dollars. Please note, unless WPMktgEngine gives notice to the contrary, payment for the Service is billed on an annual basis (for the package selected by the Account Holder) and is non-refundable.
4.2. UPGRADES AND DOWNGRADES
You will have the ability to upgrade or downgrade the Service at any time during the term. Such upgrade or downgrade will take effect immediately. For any upgrade in or addition of services, the credit card that you provided as part of your Registration Data will automatically be charged a pro-rata amount for the additional or higher level Service. For any downgrade in service level, your account for the Service will be adjusted at the next billing interval. Fees are non-refundable. There will be no refunds or credits for partial months of service.
The expiration/renewal date of Service will not change. Fees may not be credited towards other Services. All currency references are in U.S. dollars. PLEASE NOTE THAT DOWNGRADING YOUR SERVICE MAY CAUSE THE LOSS OF CONTENT AND/OR FEATURES, OR OTHER SERVICES, AND WPMKTGENGINE DOES NOT ACCEPT ANY LIABILITY FOR SUCH LOSS.
4.3. CANCELLATION AND TERMINATION
If you cancel the Service before the end of the term, your cancellation will take effect on your Service expiration date. After cancellation, you will have access to your WPMktgEngine account until your Service Expiration date, but your account will not be renewed, and as of the expiration date, you will no longer have access to your account, including any emails lead information, or marketing tools and data. All information contained therein may be deleted by Genoo. Genoo accepts no liability for such deleted information or content. If you are a User, the Account Holder who invites you may request Genoo to, and Genoo may, terminate your Service at any time and for any reason.
If your credit card is invalid for any reason, the Service may be cancelled and all the information contained within deleted permanently. Genoo accepts no liability for information that is deleted due to an invalid credit card.
You agree that Genoo, in its sole discretion, may terminate your password, and/or account, and remove and discard any Content within the Service (including, but not limited to your emails, Lead information, and all other data, if you are an Account Holder), if Genoo believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Any contracts, verbal or written or assumed, in conjunction with your deleted WPMktgEngine account and other Services (as applicable) and all its parts, at Genoo’s discretion, will be terminated as well. Genoo may also in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that Genoo may immediately deactivate or delete your emails, lead information and other data and files contained within your Account, as applicable. Genoo reserves the right to bar any further access to such data, files or the Service. You agree that Genoo shall not be liable to you or any third-party for any termination of your access to the Service. Paid accounts that are terminated will not be refunded.
Upon Service cancellation, you may contract with Genoo to obtain an export of information contained within your WPMktgEngine account.
- OWNERSHIP OF WEBSITE ACCOUNT AND SECURITY
You are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account, Email Blasts, or Lead Management, including those of your Users. You agree to immediately notify Genoo of any unauthorized uses of the account or any other breaches of security. Genoo cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Genoo be liable, in any way, for any acts or omissions by an Account Holder or a Guest, including any damages of any kind incurred as a result of such acts or omissions.
- CONTENT AND CONDUCT RULES AND OBLIGATIONS
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (“Content”) are the sole responsibility of the person from which such Content originated. This means that you, and not WPMktgEngine, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. WpMktgEngine does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content.
This site is a provider of “interactive computer services” under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation and other claims arising out of any postings to this site by third parties is limited as described therein. We are not responsible for content or any other information posted to this site by third parties. We neither warrant the accuracy of such postings or exercise any editorial control over such posts, nor do we assume any legal obligation for editorial control of content posted by third parties or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such postings.
You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Genoo be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that Genoo does not pre-screen Content, but that Genoo and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, Genoo and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Genoo or submitted to Genoo. You acknowledge and agree that Genoo may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Genoo, its users and the public.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Should Content be found or reported to be in violation with, but not limited to, the following terms, it will be in Genoo’s sole discretion as to what action should be taken.
You agree that you will not:
(a) upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a Genoo official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, such as (a) sending mass email to recipients who haven’t requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your site by posting multiple submissions in public forums that are identical;
(h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) “stalk” or otherwise harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
(m) offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) Genoo determines, in its sole discretion, is inappropriate for sale through the Service provided by Genoo;
(n) use the Service as a forwarding service to another website;
(o) exceed the scope of the Service that you have signed up for; for example, accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other peoples content as a User. If any user is reported to be in violation with the letter or spirit of these terms, Genoo retains the right to terminate such account at any time without further warning.
- ADDITIONAL SOFTWARE
With respect to any additional software that may be made available by Genoo in connection with the Service, if you elect to download or access such additional software, you understand that you may have to agree to additional terms and conditions before you use such software.
- INTERNATIONAL USE
This site provides Services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of this site (“User”) acknowledges and agrees that the site and Services shall not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
Any personal information which WPMktgEngine may collect on this site will be stored and processed in our servers located only in the United States. If you reside outside the United States, you consent to the transfer of personal information outside your country of residence to the United States.
- CONTENT SUBMITTED
Genoo does not claim ownership of the Content you place in your WPMktgEngine account or within any marketing Emails. By submitting Content to Genoo for inclusion on your WPMktgEngine account, you grant Genoo a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your website on Genoo’s Internet properties with all manner and means of distribution, now known and hereafter developed. This license exists for as long as you continue to be a WPMktgEngine customer and shall survive the expiration or termination of your account.
You acknowledge that Genoo does not pre-screen Content, but that Genoo and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Genoo and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Genoo shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Genoo has no control over such sites and resources, you acknowledge and agree that Genoo is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Genoo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
- PROHIBITION OF RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express permission by Genoo.
- GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Genoo may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time.
15 GENOO’S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Genoo or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
- DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GENOO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) GENOO WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, GENOO IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. GENOO DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
- LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT GENOO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GENOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) DATA BREACH BY UNAUTHORIZED PERSONS VIA ILLEGAL OR ILLICIT MEANS OR OTHER UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
- EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 18 AND 19 MAY NOT APPLY TO YOU.
- S. GOVERNMENT RESTRICTED RIGHTS
Genoo provides the Services, including access to related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Web Services include only those rights customarily provided to the public as defined in this Agreement. The software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Minneapolis, MN, USA, and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of Minnesota, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1000.00.
- JURISDICTION AND VENUE; APPLICABLE LAW.
The courts of Hennepin County in the State of Minnesota, USA and the nearest U.S. District Court For The District of Minnesota shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. The laws of the State of Minnesota, USA shall apply to all issues in dispute, excluding its rules regarding conflicts of law.
If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service. The failure of Genoo to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. The TOS constitutes the entire agreement between you and Genoo and govern your use of the Service, superseding any prior agreements between you and Genoo (including, but not limited to, any prior versions of the TOS). You also may be subject to additional terms and conditions that may apply when you use affiliate or other Genoo services, third-party content or third-party software. If any provision of the TOS or incorporated documents are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.
Please report any violations of the TOS to our firstname.lastname@example.org
DATA PROCESSING AGREEMENT
(For Customers Subject to GDPR – Effective Date: May 25, 2018)
THIS DATA PROCESSING AGREEMENT (“DPA”) FORMS PART OF ONE OR MORE AGREEMENTS (THE “UNDERLYING AGREEMENT(S)” THAT REQUIRE Genoo, LLC (“GENOO”) TO PROVIDE CERTAIN SERVICES TO THE CUSTOMER IDENTIFIED IN THE UNDERLYING AGREEMENT(S). IN PROVIDING THE SERVICES TO CUSTOMER PURSUANT TO THE UNDERLYING AGREEMENT(S), GENOO MAY PROCESS PERSONAL DATA ON BEHALF OF CUSTOMER. IF AND TO THE EXTENT GENOO PROCESSES PERSONAL DATA ON BEHALF OF CUSTOMER, THE PARTIES WILL BE SUBJECT TO THE GDPR AND APPLICABLE DATA PROTECTION LAWS AND REGULATIONS. IF AND TO THE EXTENT GENOO PROCESSES PERSONAL DATA ON BEHALF OF CUSTOMER, CUSTOMER WILL BE ACTING IN THE CAPACITY OF CONTROLLER, AND GENOO WILL BE ACTING IN THE CAPACITY OF PROCESSOR. REFERENCES TO THE UNDERLYING AGREEMENT(S) WILL BE CONSTRUED AS INCLUDING THIS DPA.
GENOO AGREES TO COMPLY WITH THE FOLLOWING PROVISIONS WITH RESPECT TO ANY PERSONAL DATA PROCESSED FOR CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES.
CUSTOMER INDICATES ITS AGREEMENT TO COMPLY WITH THE FOLLOWING PROVISIONS WITH RESPECT TO ANY PERSONAL DATA PROCESSED FOR BY GENOO EITHER BY (i) CUSTOMER INDICATING ITS ACCEPTANCE OF THE UNDERLYING AGREEMENT(s), OR (ii) BY ACCESSING OR USING THE SERVICES.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this DPA. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the DPA between Customer and Genoo, but has not signed its own agreement or order form with Genoo and is not a “Customer” as defined under this DPA.
1.3 “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
1.4 “Customer Data” means all electronic data submitted by or on behalf of Customer, or an Authorized Affiliate, to Genoo’s Services.
1.5 “DPA” means these terms and conditions including Attachment 1 to Exhibitattached (Standard Contractual Clauses including related Appendices).
1.6 “Data Protection Laws and Regulations” means all applicable laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under this DPA, including without limitation the GDPR and laws implementing or supplementing the GDPR.
1.7 “Data Subject” means the identified or identifiable person to whom Personal Data relates.
1.8 “GDPR” means the 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, and repealing Directive 95/46/EC (General Data Protection Regulation).
1.9 “Personal Data” means any Customer Data relating to (i) an identified or identifiable natural person, and (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations).
1.10 “Processing” and “Process” mean any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.11 “Processor” means the entity which Processes Personal Data on behalf of the Controller.
1.12 “Trust & Compliance Documentation” means the documentation regarding privacy, data security, and Sub-processor information applicable to the specific Services purchased by Customer, as may be updated periodically, and accessible via Genoo’s website at www.Genoo.com/trust-and-compliance, or as otherwise made reasonably available by Genoo.
1.13 “Services” means the software-as-a-service (SaaS) provided by Genoo for managing online marketing activities including but not limited to lead generation and management, email campaigns, landing pages, surveys, and tracking lead responses and activity with the Customer’s websites.
1.14 “Standard Contractual Clauses” means the agreement executed by and between Customer and Genoo and attached as Attachment 1 to Exhibit A, pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
1.15 “Sub-processor” means any Processor engaged by Genoo.
1.16 “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
- Services. Genoo provides the Services to Customer under the Underlying Agreement(s). In connection with the Services, the parties anticipate that Genoo mayProcess Customer Data that contains Personal Data relating to DataSubjects.
- Designation of Controller and Processor.The parties agree that with regard to the Processing of Personal Data, Customer is the Controller, Genoo is the Processor, and that Genoo will engage Sub-processors pursuant to the requirements of thisDPA.
4.1 Genoo will Process Personal Data in accordance with the Data Protection Laws and Regulations that are directly applicable to Genoo’s provision of theServices.
4.2 Customer shall in its use of the Services, Process Personal Data in accordance with the Data Protection Laws and Regulations. Customer’s instructions to Genoo for the Processing of Personal Data shall comply with Data Protection Laws and Regulations; provided, however, that as of the Effective Date hereof, Customer’s initial and complete instructions to Genoo for the Processing of Personal Dataare provided to Genoo in the Underlying Agreement(s). Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired PersonalData.
- Processing Purposes; Confidentiality. Genoo shall keep Personal Data confidential in accordance with the Underlying Agreement(s) and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Underlying Agreement(s)and applicable order form(s); (ii) Processing initiated by Users in their use of the Services;and (iii) Processing to comply with other documented, reasonable instructions provided by Customer (for example, via email) where such instructions are consistent with the terms of the Underlying Agreement. Genoo shall not be required to comply with or observe Customer’s instructions if such instructions would violate the applicable Data Protection Laws and Regulations.
- Scope of Processing.The subject-matter and scope of Processing of Personal Data by Genoo is limited to the performance of the Services pursuant to the Underlying Agreement(s). The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Appendix 1 to Attachment 1 (Exhibit A)to thisDPA.
- Data Subject Requests.To the extent legally permitted, Genoo shall promptly notify Customer if Genoo receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Factoring into account the nature of the Processing, Genoo shall assist Customer by appropriate organizational and technical measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Genoo shall, upon Customer’s request, provide commercially-reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent that Genoo is legally authorized to do so, and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Genoo’s provision of suchassistance.
- Genoo Personnel.Genoo shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training regarding their responsibilities, and have executed written confidentiality agreements. Genoo shall take commercially-reasonable steps to ensure the reliability of any Genoo personnel engaged in the Processing of Personal Data. Genoo shall ensure that Genoo’s access to Personal Data is limited to those personnel assisting in the provision of the Services in accordance with theUnderlying Agreement(s).
- Data Protection Officer.Genoo shall have appointed, or shall appoint, a data protection officer, provided that such appointment is required byData Protection Laws and Regulations.
- Genoo’s Sub-processors.
10.1 Customer acknowledges and agrees that Genoo may engage third-party Sub-processors in connection with the provision of the Services. Genoo agrees to publish a current list of Sub-processors via Genoo’s applicable Trust & Compliance Documentation. Genoo agrees to promptly notify Customer regarding Genoo’s appointment of any new third-party Sub-processor.
10.2 Inorder to exercise its right to object to Genoo’s use of a new Sub-processor, Customer shall notify Genoo promptly in writing within ten (10) business days after receipt of Genoo’s notice regarding the appointment of each third-party Sub-processor. In the event Customer objects to a new Sub-processor, and that objection is not unreasonable, Genoo will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially-reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Genoo is unable to make available such changewithinareasonabletimeperiod,whichshallin no eventexceedthirty(30)days,Customermay terminatetheapplicableorder form(s)withrespectonlytothoseaspectsoftheServiceswhich cannotbeprovidedbyGenoowithouttheuseoftheobjected-tonewSub-processorbyproviding written notice to Genoo. Genoo will refund Customer any prepaid fees covering the remainder of thetermofsuchorder form(s)followingtheeffectivedateofterminationwithrespecttosuch terminated Services. If termination of applicable order form(s) is not feasible, then Customer may terminate the Underlying Agreement(s) by thirty (30) days prior written notice to Genoo.
10.3 Upon request, Genoo will provide to Customer copies of Sub-processor agreements; provided, however, that to the extent that such Sub-processor agreements contain commercial information or provisions unrelated to information required by applicable Data Protection Laws and Regulations, such unrelated information may be removed by Genoo in its discretion.
10.4 Genoo will not transfer any Personal Data to a Sub-processor which does not provide evidence of a jurisdiction, data transmission mechanism or data protection certification (such as the EU-U.S. and Swiss-U.S. Privacy Shield)which is compliant with Data Protection Laws and Regulations for the onward transfer of Personal Data from the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom
- Flow Down Provisions for Sub-processor Agreements. Liability for Sub-processors.
11.1 Genoo shall impose the same obligations of Genoo regarding GDPR hereunder to its Sub-processors.
11.2 Genoo shall be liable for the acts and omissions of its Sub-processors to the same extent Genoo would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Underlying Agreement(s).
- Security Measures.Genoo shall maintain appropriate organizational and technical measures for protection of the security (including protection against unauthorized or unlawful Processing, and against unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Customer Data), confidentiality, and integrity of Customer Data, as set forth in Genoo’s applicable Trust & Compliance Documentation. Genoo regularly monitors compliance with these measures. Genoo will not materially decrease the overall security of the Services during Customer’s and/or Customer’s Authorized Affiliates’ subscription term.
- Third-Party Certifications and Audit Results.Genoo has attained the third-party certifications and audit results set forth in the Trust & Compliance Documentation. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Underlying Agreement(s), Genoo shall make available to Customer a copy of Genoo’s then most recent third-party certifications or audit results, asapplicable.
- Notifications Regarding Customer Data. Genoo shall (i) implement and maintain reasonable and appropriate data security and incident management policies and procedures, as specified in the Trust & Compliance Documentation, and (ii) notify Customer without undue delay after becoming aware of the unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Genoo or its Sub-processors of which Genoo becomes aware (hereinafter, a “Customer Data Incident”), as required to assist the Customer in ensuring compliance with its obligations to notify the Supervisory Authority in the event of Personal Data breach. Genoo shall make reasonable efforts to identify the cause of such Customer Data Incident, and take those steps as Genoo deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident, to the extent that the remediation is within Genoo’s reasonable control. The obligations set forth herein shall not apply to incidents that are caused by either Customer or Customer’sUsers.
- Return of Customer Data. Genoo shall return Customer Data to Customer, and to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and time periods specified in the Trust & Compliance Documentation, unless the retention of the data is requested from Genoo according to mandatory statutorylaws.
- Authorized Affiliates.The parties agree that, by executing this DPA, the Customer enters into this DPA on behalf of itself, and as applicable, in the name and on behalf of its Authorized Affiliate(s), thereby establishing a separate DPA between Genoo and each such Authorized Affiliate, subject to the provisions of the Underlying Agreement(s). Each Authorized Affiliate agrees to be bound by the obligations under this DPA, and to the extent applicable, the Underlying Agreement(s). An Authorized Affiliate is not and does not become a party to the Underlying Agreement(s), and is only a party to this DPA. All access to and use of the Services by Authorized Affiliate(s) must comply with the terms and conditions of the Underlying Agreement(s) and any violation thereof by an Authorized Affiliate shall be deemed a violation byCustomer.
- Communications. The Customer that is the contracting party to the Underlying Agreement(s) shall remain responsible for coordinating all communication with Genoo under this DPA, and shall be entitled to transmit and receive any communication in relation to this DPA on behalf of its AuthorizedAffiliate(s).
- Exercise of Rights.Where an Authorized Affiliate becomes a party to the DPA, it shall to the extent required under applicable Data Protection Laws and Regulations beentitled to exercise the rights and seek remedies under this DPA, except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Genoo directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Underlying Agreement(s) shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Underlying Agreement(s) shall exercise any such rights under this DPA ina combined manner for all of its Authorized Affiliates together, instead of doing so separately for each Authorized Affiliate.
- Liability.Each party’s liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs involving Customer’s AuthorizedAffiliates, whether in contract, tort or under any other theory of liability, is subject tothe limitation of liability, damage waiver, and liability cap provisions of the Underlying Agreement(s), and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Underlying Agreement(s) and all DPAs taken together. Genoo’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Underlying Agreement(s) and each DPA shall apply in the aggregate for all claims under both the Underlying Agreement(s) and all DPAs established under this Agreement, including by Customer and all of Customer’s Authorized Affiliates, and shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA. Each reference to the DPA herein means this DPA including itsAttachments and Appendices.
- Data Protection Impact Assessment.Upon Customer’s request, Genoo shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Genoo. Genoo shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 21 of this DPA, to the extent required under theGDPR.
- Standard Contractual Clauses.
22.1 The Standard Contractual Clauses apply to (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and its Authorized Affiliates, and (ii) all Affiliates of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed Order Forms for the Services. For the purpose of the Standard Contractual Clauses the aforementioned entities shall be deemed “data exporters.”
22.2 For the purposes of Clause 5 of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Underlying Agreement(s) and applicable order form(s); (b) Processing initiated by Users in their use of the Services and (c) Processing to comply with other reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of theUnderlying Agreement(s).
22.3 The parties agree that the audits described in Clause 5 and Clause 12 of the Standard Contractual Clauses shall be carried out in accordance with thefollowing specifications: following Customer’s written request, and subject to the confidentiality obligations set forth in the Underlying Agreement(s), Genoo shall make available to Customer information regarding the Genoo’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits set forth in the Trust & Compliance Documentation, to the extent that Genoo makes them generally available to its customers.
22.4 The parties agree that the certification of deletion of Personal Data that is described in Clause 12 of the Standard Contractual Clauses shall be provided by Genoo to Customer only upon Customer’srequest.
- Audits. Customer may contact Genoo in accordance with the “Notices” Section of the Underlying Agreement(s) to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse Genoo for any time expended for any such on-site audit at the Genoo’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Genoo shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Genoo. Customer shall promptly notify Genoo and provide information about any actual or suspected non-compliance discovered during an audit. The provision in this section shall by no means derogate from or materially alter the provisions on audits as specified in the Standard ContractualClauses.
- Assignment.This DPA shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of either party, whether by merger, sale of assets, or other agreements or operation of law.
- Force Majeure.Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, terrorism, acts of God, epidemic, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or complete or partial failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
- Order of Precedence.
26.1 With respect to the rights and obligation of the parties vis-à-vis each other, in the event of a conflict between the terms of the Underlying Agreement(s) and this DPA, the terms of this DPA will control.
26.2 In the event of a of a conflict between the terms of this DPA and the Standard Contractual Clauses, the terms of the Standard Contractual Clauseswill control.
- Miscellaneous.This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
ATTACHMENT 1 TO EXHIBIT A
Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organisation: the name and contact information given in connection with the Genoo Agreement(the data exporter),
Name of the data importing organisation: Genoo, LLC, a Minnesota limited liability company located at 1405 Lilac Dr. N #215, Golden Valley, MN 55422 (“Genoo”) (the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in this Attachment 1.
For the purposes of the Clauses:
‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of suchdata;
‘the data exporter’ means the controller who transfers the personaldata;
‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive95/46/EC;
‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the writtensubcontract;
‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals, and in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter isestablished;
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidentalloss, alteration, unauthorised disclosure or access,in particular where the processing involves the transmission of data over a network, and against all other unlawful forms ofprocessing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data whereapplicableare specified in Appendix 1 which forms an integral part of theClauses.
Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-partybeneficiary.
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9to 12, in cases where the data exporter has factually disappeared or has ceasedto exist in law unlessany successorentity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter,inwhichcasethedatasubjectcanenforcethemagainstsuchentity.
The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legalobligationsofthedataexporterbycontract orbyoperationoflawasaresultofwhichit takes on the rights and obligations of the data exporter, in which case the data subject can enforcethem against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under theClauses.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by nationallaw.
Obligations of the data exporter
The data exporter agrees and warrants:
that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordancewith the relevant provisions of the applicable data protection law (and where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of thatState;
that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only onthedataexporter’sbehalfandinaccordancewiththeapplicabledataprotectionlaw and theClauses;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to thiscontract; that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access,in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensurea level of security appropriate tothe riskspresented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
that it will ensure compliance with the securitymeasures;
that, if the transferinvolves special categories of data, the data subject has been informed or will be informedbefore, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive95/46/EC;
to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authorityif the data exporter decides to continue the transfer or to lift thesuspension;
to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercialinformation;
that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses;and
that it will ensure compliance with Clause 4(a) to(i).
Obligations of the data importer
The data importer agrees and warrants:
toprocessthepersonaldataonlyonbehalfofthedataexporter andincompliancewith its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly 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 thecontract;
that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the eventof a change in this legislation which is likely to have a substantialadverseeffectonthewarrantiesandobligationsprovidedbytheClauses,it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal datatransferred;
that it will promptly notify the data exporterabout:
any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcementinvestigation,
any accidental or unauthorised access,and
any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to doso;
to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of thesupervisoryauthoritywithregardtotheprocessingofthedatatransferred;
attherequestofthedataexportertosubmit itsdataprocessingfacilitiesforauditofthe processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and inpossession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisoryauthority;
to make available to the data subject upon request a copy of the Clauses, or any existingcontractforsubprocessing,unlesstheClausesorcontractcontaincommercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior writtenconsent;
that the processing services by the subprocessor will be carried out in accordance with Clause11;
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the dataexporter.
The parties agreethat any data subject, who has suffered damageas a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damagesuffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agreesthat the data subject may issue a claim against the data importer as if it were the data exporter, unless any successorentity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforceits rights against suchentity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist inlaw or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessorwith regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity hasassumedtheentirelegalobligationsofthedataexporterordataimporterbycontract or by operation of law, in which case the data subject canenforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the datasubject:
to refer the dispute to mediation, by an independent person or, where applicable, by the supervisoryauthority;
to refer the dispute to the courts in the Member State in which the data exporter isestablished. The parties agreethat the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or internationallaw.
Cooperation with supervisory authorities
The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protectionlaw.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer,and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protectionlaw.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict theClause.
The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of thedataexporter.Wherethedataimportersubcontractsitsobligationsunderthe Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses1. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under theClauses.
The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter isestablished.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisoryauthority.
Obligation after the termination of personal data processing services
The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferredanymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph1.
APPENDIX 1 TO ATTACHMENT 1 (EXHIBIT A)
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is: (i) the legal entity that has executed the Standard Contractual Clauses as the Data Exporter, and (ii) all Affiliates (defined in this DPA) of the Customer that have purchased Services pursuant to the Underlying Agreement(s).
The data importer is: Genoo, LLC provider of the Services to the data exporter and which processes Personal Data upon the instruction of the data exporter and in accordance with the Underlying Agreement(s) and this DPA.
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects: data exporter’s employees, agents, advisors, contractors, or any user or administrator authorized by the data exporter to use the Services (who are naturalpersons).
Categories of data
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
Standard fields include the following:
First and lastname
Business contact information (organization name, email, phone, fax, physical businessaddress, job title, department, industry, buying need, SIC Code, annual revenue, number employees, )
Personal contact information (email, cellphone, Twitter name, LinkedIn profile URL, Facebook page URL, Google Plus profile URL )
Demographic data (gender, birthdate)
Localizationdata (originating IP Address)
(continue adding all standard data fields)
Custom fields selected and added by the data exporter.
Special categories of data (if appropriate)
The Personal Data transferred concern special categories of data selected and entered by the data exporter with custom fields.
The Personal Data transferred will be subject to the following basic processing activities: the objective of Processing Personal Data by the data importer is the performance of the Services pursuant to the Underlying Agreements(s).
APPENDIX 2 TO ATTACHMENT 1 (EXHIBIT A)
This Appendix forms part of the Clauses and must be completed and signed by the parties.
- Technical and Organizational Security Measures
Genoo shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including Personal Data, as set forth in the Trust & Compliance Documentation. Genoo regularly monitors compliance with these safeguards. Genoo will not materially decrease the overall security of the Services during a subscription term.
APPENDIX 3 TO ATTACHMENT 1 (EXHIBIT A)
THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties. The list of subprocessors approved by the data importer as of the effective date of the DPA is as set forth below:
|Subprocessor||Description of Processing|
|Rackspace / Datapipe / GoGrid||Genoo service cloud hosting provider.|
|Full Contact||We will use the email address for leads who submit a lead capture form (with a call to the Full Contact API) to discover any social information about them that uses that email address, and we will augment the lead information with the information discovered, if any.|