1. SYMPLUR SIGNALS SERVICES AND SUPPORT
1.1 Symplur, LLC (“Company”) hereby grants a limited, non-exclusive, non-transferable, non-sublicensable license to the Customer named in the applicable Order Form to use the Software (as defined below) solely in accordance with the terms of this Agreement.
1.2 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit B. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.3 Subject to the terms hereof, Company will provide Customer with technical support services in accordance with the terms set forth in Exhibit C.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company in writing); (c) use the Services or any Software for timesharing or service bureau purposes; (d) allow any third party to use or have access to the Services or Software; or (e) remove any proprietary notices or labels from the Software or any other Company intellectual property provided under this Agreement.
2.2 Customer represents, covenants, and warrants that: (i) Customer will use the Services only in compliance with this Agreement, Company’s standard published policies then in effect (the “Policy”) and all applicable laws, rules, codes, terms of service and regulations; and (ii) with respect to Customer Data, Customer (a) has obtained prior written consent and permission from all applicable third party data providers and/or persons to supply Customer Data to Company legally sufficient for Company’s use in performing the Services listed herein, (b) has adequate data and privacy policies and practices in place, (c) has appropriate mechanisms in place to transfer such Customer Data to Company (e.g. data processing addendums, model clauses, privacy shield certification etc.), and (d) is responsible for any fees, costs and expenses associated with the transfer of Customer Data to Company. Customer further agrees that it is solely responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from or is related to: (i) an alleged violation of this section 2.2; (ii) Customer’s use of the Services; and/or (iii) the Customer Data. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Customer agrees to implement controls to ensure that: i) its use does not exceed the maximum number of Users subscribed for on the Order Form; ii) User login credentials are not shared with other individuals not assigned to the applicable User’s account; and iii) all Users utilize their personal email accounts to access the Services (no generic accounts are permitted e.g. email@example.com). Customer further agrees to pay Company any additional Fees in proportion to any overage in Users beyond those listed in the Order Form, as determined by Company in its reasonable discretion.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes, without limitation, non-public information regarding features, functionality and performance of the Service or the Software. Proprietary Information of Customer includes, without limitation, non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance or use of the Services as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed by it without use of any Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, a Receiving Party may disclose the Disclosing Party’s Proprietary Information to the extent required by any judicial or government requirement or order, provided, however, that the Receiving Party will promptly notify the Disclosing Party of any such requirement or order, and will cooperate with the Disclosing Party to contest any such requirement or order.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing (“Company IP”). Neither party gives the other party an ownership interest in its data or intellectual property through this Agreement. The Company retains all right, title and interest in the Company IP. Except as otherwise expressly granted in this Agreement, no license, right or interest in any Company IP is granted hereunder. The Services and any modifications to the Services (including without limitation any inventions, creations, and improvements conceived) made or provided by Company pursuant to the Agreement, whether alone or with any contribution from Customer or its personnel, are also Company IP. To the extent Customer or its personnel may acquire any right or interest to any Company IP by operation of law, Customer hereby irrevocably assigns all such right and interest exclusively to Company. Customer agrees that any feedback Customer provides, will be the sole and exclusive property of Symplur. Customer hereby irrevocably transfers and assigns to Symplur and agrees to irrevocably assign and transfer to Symplur all of Customer’s right, title and interest in and to all feedback including all intellectual property rights therein.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to use such information and data (i) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) use such data in aggregate or other de-identified form in connection with its business. Customer grants Company permission to name them as a customer and/or use their logo across Company’s marketing materials, e.g., Company’s website, presentations, brochures, etc. solely for Company’s self-promotion purposes. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon sixty (60) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the date of the invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and in the event of any late payment Company shall have the option to immediately terminate this Agreement and the Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party delivers written notice of termination of this Agreement at least forty-five (45) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days of receipt of notice of such breach. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data (customizations toHealthcare Categories and Sentiment Dictionaries) available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may in its sole discretion delete stored Customer Data. Upon any termination, Customer shall delete all data in Customer’s possession and/or control which was obtained through the Services, including any data which may be held by Customer’s agents and representatives, within thirty (30) days of the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY (INCLUDING BUT NOT LIMITED TO ITS EQUIPMENT AND TECHNOLOGY SUPPLIERS) AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, EMPLOYEES AND SUCCESSORS IN INTEREST, HEIRS, AND ASSIGNS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS); (B) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (C) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (D) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable and the parties agree to use good faith efforts to replace such unenforceable provision with a legally permissible alternative that most closely follows the parties intent. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties. In the event of any conflict between these Terms of Service and the terms of the DPA, the terms of the DPA shall prevail so far as the subject matter concerns the processing of personal data. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request. The parties agree that Sections 2, 3, 7 and 8 will survive the expiration or termination of this Agreement.
This exhibit shall serve as a statement of work, and shall expressly define the scope of services to be performed. The Company will provide the following Implementation Services, and those services reasonably necessary to effectuate this agreement. Should there be a dispute as to the scope of services, it shall be resolved by Company, in a manner that upholds the spirit of this agreement, and is not repugnant to the meaning of the plain text herein.
- Provide an administrative billing account for the Customer.
- Bulk provisioning of all user accounts to Symplur Signals associated with the Customer.
- Customer training via a screen-sharing tool. The first 1-hour training session is typically performed for the Customer team the day they receive access to Symplur Signals. The second 1-hour training session is performed after the Customer team have had some experience using Symplur Signals, typically 1 to 2 weeks after granted access.
- Provide online documentation for every feature, report and filter of Symplur Signals.
- For API customers, provision API access credentials to the Symplur API and provide API onboarding guidance to Customer engineering team.
Service Level Terms
The Services shall be available 99%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than three hours, Company will credit Customer 3% of Service fees for each period of sixty or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Company will provide Technical Support to Customer via both in-app chat and electronic mail on weekdays during the hours of 6:00 AM through 6:00 PM Pacific time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by opening the in-app chat box or by emailing firstname.lastname@example.org.
Company will use commercially reasonable efforts to respond to all helpdesk tickets within two (2) business days.
Data Processing Addendum
This Data Processing Addendum, including Annex 1, Annex 2 and related Appendix 1 and Appendix 2 incorporated herein (together this “Addendum” or “DPA”), supplements the Terms of Service between Symplur and Customer. Capitalized terms and definitions not otherwise defined in the DPA shall have the meaning given to them in the Terms of Service. In the event of any conflict between the terms of this DPA and the Terms of Service, the terms of this DPA shall prevail so far as the subject matter concerns the processing of Personal Data.
(A) Symplur provides a software-as-a-service, social media analytics Service to Customer and in connection with the Services, Symplur processes certain personal data in respect of which Customer, members of the Customer Group (as defined below), or third parties who interface with Customer’s products, services or systems, may be a data controller under the Applicable Data Protection Law (as defined below).
(B) Customer and Symplur have agreed to enter into the DPA in order to ensure that adequate safeguards are put in place with respect to the protection of such personal data as required by the Applicable Data Protection Law.
1.1 The following definitions are used in this DPA:
(a) “Applicable Data Protection Law” means the relevant data protection laws, rules, and regulations to which Personal Data is subject. With respect to the European Union Protection Law, (EU means the European Union inclusive of the United Kingdom, whether or not the United Kingdom has officially withdrawn from the European Union), “Applicable Data Protection Law” shall include, but not be limited to: (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and (ii) on and after 25 May 2018, Regulation (EU) 2016/679 of the European Parliament and of the Council 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 (the “General Data Protection Regulation” or “GDPR”);
(b) “Symplur” means Symplur, LLC.
(c) “Customer Group” means Customer and any corporate entities which are from time to time: (a) under Common Control with Customer; and (b) established and/or doing business in the European Economic Area or Switzerland;
(d) “Data Subject Request” means a request from a data subject regarding their Personal Data, whether in relation to access, rectification, restrictions on processing, erasure or portability in respect of such Personal Data;
(e) “Personal Data” means all data which is defined as ‘Personal Data’ in the Applicable Data Protection Law and which is provided by Customer to Symplur or accessed, stored or otherwise processed by Symplur in connection with the Services;
(f) “processing“, “data controller“, “data subject“, “supervisory authority” and “data processor” shall have the meanings ascribed to them in the Applicable Data Protection Law.
1.2 An entity “Controls” another entity if it: (a) holds a majority of the voting rights in it; (b) is a member or shareholder of it and has the right to remove a majority of its board of directors or equivalent managing body; (c) is a member or shareholder of it and controls alone or pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or (d) has the right to exercise a dominant influence over it pursuant to its constitutional documents or pursuant to a contract; and two entities are treated as being in “Common Control” if either controls the other (directly or indirectly) or both are controlled (directly or indirectly) by the same entity.
- Status of the parties
2.1 The type of Personal Data processed pursuant to this DPA and the subject matter, duration, nature and purpose of the processing, and the categories of data subjects, are as described in Annex 1.
2.2 Each of Customer and Symplur warrant in relation to Personal Data that it will (and will procure that any of its staff and/or sub-processors will) comply with the Applicable Data Protection Law. As between the parties, Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
2.3 In respect of the parties’ rights and obligations under this DPA regarding the Personal Data, the parties hereby acknowledge and agree that Customer is the data controller and Symplur is the data processor and accordingly Symplur agrees that it shall process all Personal Data in accordance with its obligations pursuant to this DPA.
2.4 The parties recognize that any reports, analyses, output, other materials or information generated or produced by Customer and Symplur as part of the Services (“Service Deliverables”) may include personal data about data subjects (“Service Deliverable Personal Data”). For the purposes of the Applicable Data Protection Law, Customer agrees that, following receipt of a Service Deliverable, it shall be data controller in respect of its use and processing of the relevant Service Deliverable Personal Data and shall comply with all applicable obligations it has under the Applicable Data Protection Law in respect of such data to Symplur and the relevant data subjects.
2.5 Each of Symplur and Customer shall notify to each other an individual within its organization authorized to respond from time to time to enquiries regarding the Personal Data and each of Symplur and Customer shall deal with such enquiries promptly.
- Symplur obligations
3.1 With respect to all Personal Data, Symplur warrants that it shall:
(a) only process the Personal Data in order to provide the Services and shall act only in accordance with this DPA and Customer’s written instructions as represented by the Agreement and this DPA, except to the extent prohibited by applicable law, in which case Symplur will notify Customer to the extent allowed;
(b) as soon as reasonably practicable upon becoming aware, inform Customer if, in Symplur’s opinion, any instructions provided by Customer under Clause 3.1(a) infringe the GDPR, or other applicable privacy regulations;
(c) implement appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data;
(d) take reasonable steps to ensure that only authorized personnel have access to such Personal Data and that any persons whom it authorizes to have access to the Personal Data are under obligations of confidentiality;
(e) as soon as reasonably practicable upon becoming aware, notify Customer of any actual or alleged incident of unauthorized or accidental disclosure of or access to any Personal Data by any of its staff, sub-processors or any other identified or unidentified third party (a “Security Breach“);
(f) promptly provide Customer with reasonable cooperation and assistance in respect of the Security Breach and all Customer information in Symplur’s possession concerning the Security Breach;
(g) not make any announcement about a Security Breach (a “Breach Notice“) without:
(i) the prior written consent from Customer; and
(ii) prior written approval by Customer of the content, media and timing of the Breach Notice; unless required to make a disclosure or announcement by applicable law;
(h) provide reasonable assistance to Customer to enable Customer to comply with its obligations to respond to any Data Subject Requests received in connection with this DPA, including by notifying Customer of any Data Subject Requests Symplur receives relating to Customer’s obligations under the Applicable Data Protection Law;
(i) as soon as reasonably practicable following, and in any event within sixty (60) days of, termination or expiry of the Agreement or completion of the Services, Symplur will delete all Customer supplied Personal Data (including copies thereof) processed pursuant to this DPA other than to the extent Symplur retains Personal Data to comply with its legal obligations or is otherwise permitted to do so under Applicable Data Protection Law;
(j) provide such assistance as Customer reasonably requests (taking into account the nature of processing and the information available to Symplur) to Customer in relation to Customer’s obligations under the Applicable Data Protection Law with respect to:
(i) data protection impact assessments (as such term is defined in the GDPR);
(ii) notifications to the supervisory authority under the Applicable Data Protection Law and/or communications to data subjects by Customer in response to any Security Breach; and
(iii) Customer’s compliance with its obligations under the GDPR with respect to the security of processing,
provided the Customer shall pay Symplur’s charges for providing the assistance in clause 3.1(j), at Symplur’s standard consultancy rates, or else a reasonably negotiated rate between the parties.
for purposes of clause 5.1 (h) of the Standard Contractual Clauses in Annex 2, the following clauses shall apply;
4.1 Customer grants a general authorization (a) to Symplur to appoint third party data center operators and outsourced support and service providers as sub-processors to support the performance of the Services. For the avoidance of doubt Symplur may continue to use those sub-processors already engaged as of the date of this Addendum.
4.2 Symplur will maintain a list of sub-processors, which shall be updated at least once a year, and provided to Customer upon request. If Customer has a reasonable objection to any new or replacement sub-processor, it shall notify Symplur of such objections in writing within ten (10) days of the notification and the parties will seek to resolve the matter in good faith. If Symplur is able to provide the Services to Customer in accordance with the Agreement without using the sub-processor and decides in its discretion to do so, then Customer will have no further rights under this clause 4.2 in respect of the proposed use of the sub-processor. If Symplur requires use of the sub-processor and is unable to satisfy Customer as to the suitability of the sub-processor or the documentation and protections in place between Symplur and the sub-processor within sixty (60) days from Customer’s notification of objections, Customer may terminate the Agreement by providing written notice to Symplur and termination shall be effective upon receipt by Symplur.
4.3 Symplur will ensure that any sub-processor it engages to provide the Services on its behalf in connection with the Agreement does so only on the basis of a written contract which imposes on such sub-processor terms substantially no less protective of Personal Data than those imposed on Symplur in this DPA (the “Relevant Terms“). Symplur shall procure the performance by such sub-processor of the Relevant Terms and shall be liable to Customer for any breach by such person of any of the Relevant Terms.
- Audit and records
5.1 Symplur shall, in accordance with the Applicable Data Protection Law, make available to Customer such information in Symplur’s possession or control as Customer may reasonably request and Symplur can reasonably provide with a view to demonstrating Symplur’s compliance with the obligations of data processors under the Applicable Data Protection Law in relation to its processing of Personal Data.
5.2 Customer may exercise its right of audit under the Applicable Data Protection Law, through Symplur providing:
(a) an audit report in respect of its data center not older than 18 months by a registered and independent external auditor demonstrating that Symplur’s technical and organizational measures are sufficient and in accordance with an accepted industry audit standard; and
(b) additional information in Symplur’s possession or control to an EU supervisory authority when it requests or requires additional information in relation to the data processing activities carried out by Symplur under this DPA.
- Data transfers
6.1 To the extent any processing of Personal Data by Symplur takes place in a country outside the European Economic Area (“EEA“) that is not deemed adequate in accordance with Article 45 of the GDPR, the parties agree that the standard contractual clauses approved by the EU authorities under Applicable Data Protection Law and set out in Annex 2 will apply in respect of that processing and Symplur will comply with the obligations of the ‘data importer’ in the standard contractual clauses and Customer will comply with the obligations of ‘data exporter’.
6.2 Customer acknowledges that the provision of the Services under the Agreement may require the processing of Personal Data by sub-processors in countries outside the EEA from time to time.
6.3 If, in the performance of this DPA, Symplur transfers any Personal Data to a sub-processor (which shall include without limitation any affiliates of Symplur) and without prejudice to clause 4 where such sub-processor will process Personal Data outside the EEA, Symplur shall in advance of any such transfer ensure that a mechanism to achieve adequacy in respect of that processing is in place such as:
(a) the requirement for Symplur to execute or procure that the third party execute on behalf of Customer standard contractual clauses approved by the EU authorities under the Applicable Data Protection Law and set out in Annex 2;
(b) the requirement for the third party to be certified under the Privacy Shield framework; or
(c) the existence of any other specifically approved safeguard for data transfers (as recognized under the Applicable Data Protection Law) and/or a European Commission finding of adequacy.
6.4 The following terms shall apply to the standard contractual clauses set out in Annex 2:
(a) Customer may exercise its right of audit under clause 5.1(f) of the standard contractual clauses as set out in, and subject to the requirements of, clause 5.2 of this DPA; and
(b) Symplur may appoint sub-processors as set out, and subject to the requirements of, clauses 4 and 6.3 of this DPA.
7.1 If Customer determines that a Security Breach must be notified to any supervisory authority and/or data subjects and/or the public or portions of the public pursuant to the Applicable Data Protection Law, Customer will notify Symplur before the communication is made and supply Symplur with copies of any written documentation to be filed with the supervisory authority and of any notification Customer proposes to make (whether to any supervisory authority, data subjects the public or portions of the public) which references Symplur, its security measures and/or role in the Security Breach, whether or not by name. Subject to Customer’s compliance with any mandatory notification deadlines under the GDPR, Customer will consult with Symplur in good faith and take account of any clarifications or corrections Symplur reasonably requests to such notifications and which are consistent with the GDPR.
7.2 This DPA sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it. Other than in respect of statements made fraudulently, no other representations or terms shall apply or form part of this DPA.
7.3 Members of the Customer Group may enforce the terms of this DPA directly against Symplur where they are data controller in respect of Personal Data under Applicable Data Protection Law.
7.4 This DPA shall be governed by and construed in accordance with the law of the country or territory which governs the Agreement and the dispute resolution and/or jurisdiction provisions of the Agreement shall also apply to this DPA.
to the Data Processing Addendum
Details of the Personal Data and processing activities
(a) The personal data comprises:
Data supplied by the Platform for Analysis: Symplur provides access to Personal Data as part of the Services. The extent to which this data is processed is determined and controlled by Customer, and may include, but is not limited to, the following categories of Personal Data:
- Identification and contact data (name, social user account name & numbers, address, title, email address and other contact details);
- Employment details (employer, job title, geographic location);
- Preferences and interests;
- Personal visual representations (profile images, user submitted photos)
- Special Category information; as posted to social media by data subjects, information may or may not contain: ethnic origin, political opinion(s), religion, trade union membership, genetics, health, sex life, or sexual orientation or any other personal information expressed; which may be used to derive user sentiment;
- Derivative information: age, gender and user sentiment
Customer supplied data: Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
- Identification and contact data (name, username, and email address);
- IT information (IP address, device ID, system ID);
- Documents and images that Customer chooses to upload to Symplur platform (to the extent that these comprise personal data);
(b) The duration of the processing will be:
The duration of the data processing under this Addendum is until the termination of the Agreement in accordance with its terms.
(c) The processing will comprise activities relating to:
Symplur provides cloud-based analytics services, as described in the Agreement, and will Process Personal Data as necessary to perform the Services pursuant to the Agreement.
The personal data transferred will be processed in accordance with the Agreement and may be subject to the following processing activities:
- Storage and other processing necessary to provide, maintain, and improve the Services provided to Customer;
- To provide assistance and technical support to Customer;
- Processing initiated by Customer in their use of the Services; and
- Disclosures in accordance with the Agreement, as compelled by law.
(d) The purpose of the processing is:
The purpose of the Processing under this Addendum is to provide the Services pursuant to the Agreement (including this Addendum) or as otherwise agreed by the parties.
(e) Data subjects may include:
Data supplied by the Platform for Analysis: Symplur provides access to data collected from public online discourse and other sources as part of the Services. The extent to which this data is processed is determined and controlled by Customer, and may include personal data relating to the following categories of data subject:
- Participants in public social media discourse;
- Participants in public commenting, reviews, forums platforms;
- Publishers of public news and blogs articles
Customer supplied data, the extent of which is determined and controlled by Customer and which may include, but is not limited to, personal data relating to the following categories of data subjects:
- Authorized Users;
- Employees of Customer;
- Consultants of Customer;
- Contractors of Customer;
- Agents of Customer;
- Third parties with which Customer conducts business
to the Data Processing Addendum
2010 EU Model clauses extracted from 2010/87/EU Annex EU Standard Contractual Clauses for the transfer of personal data to data processors established in third countries which do not ensure an adequate level of data protection
Both 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 Appendix 1.
For the purposes of the Clauses:
(a) “personal data“, “special categories of data“, “process/processing“, “controller“, “processor“, “data subject” and “supervisory authority” shall have the same meaning as in EU Data Protection Laws 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 such data;
(b) the “data exporter” means the entity who transfers the personal data;
(c) 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 EU Data Protection Laws 95/46/EC;
(d) the “sub-processor” means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 written subcontract;
(e) 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 is established; and
(f) “technical and organisational security measures” means those measures aimed at protecting 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.
- Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
- Third-party beneficiary clause
3.1 The data subject can enforce against the data exporter this Clause, Clause 4.1(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-party beneficiary.
3.2 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 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity 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, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the sub-processor 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 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, in which case the data subject can enforce them against such entity. Such third-party liability of the sub- processor shall be limited to its own processing operations under the Clauses.
3.4 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 national law.
- Obligations of the data exporter
4.1 The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with 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 that State;
(b) 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 on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) 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 ensure a level of security appropriate to the risks presented 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;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, 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 EU Data Protection Laws 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) 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 sub-processing 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 commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor 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
(j) that it will ensure compliance with Clause 4(a) to (i).
- Obligations of the data importer
5.1 The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with 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 the contract;
(b) 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 event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, 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;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) 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 enforcement investigation;
(ii) any accidental or unauthorized access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
(e) 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 the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial 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;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 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 sub-processor 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 agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
6.3 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 sub-processor 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 in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- Mediation and jurisdiction
7.1 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 data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
7.2 The parties agree that 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 international law.
- Co-operation with supervisory authorities
8.1 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 protection law.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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 protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
- Governing law
The Clauses shall be governed by the laws 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 the Clause.
11.1 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 the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the laws of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5.1(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
- Obligation after the termination of personal data-processing services
12.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 transferred anymore.
12.2 The data importer and the sub-processor 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 paragraph 1.
This agreement has been entered into as of the effective date of the Addendum.
to the Clauses
This Appendix forms part of the Clauses.
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 the entity identified as the “Customer” in the Addendum.
The data importer is Symplur, a social media analytics corporation, which processes Personal Data upon the instruction of the data exporter in accordance with the terms of the Agreement.
The personal data transferred concern the categories of data subjects set out in Annex 1 to this DPA.
Categories of data
The personal data transferred concern the categories of data set out in Annex 1 to this DPA.
The personal data transferred concern the following special categories of data:
The data exporter may submit special categories of data to Symplur, the extent of which is determined and controlled by the data exporter in its sole discretion. Such special categories, if any, are set out in Annex 1 to this DPA.
The personal data transferred will be subject to the following basic processing activities: The personal data transferred will be processed in accordance with the Agreement, any Statement of Work (“SOW”, if any) and any Order Form to provide the Services, and are as set out in Annex 1 to this DPA.
to the Clauses
This Appendix forms part of the Clauses.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Standard Account: An account that does not meet the definitions of Privileged or Service Account below.
Privileged Account: A privileged account is one that runs with elevated privileges; this includes for example administrator and root accounts. They provide access to Personal Data or sensitive functionality. Sensitive functionality is any functionality which if abused could result in a significant incident or business critical impact.
Service Account: An account type used to provide server/system/process (rather than a person) access to the corporate network for business purposes. Passwords standards for Service Accounts match those of Privileged Accounts except where indicated otherwise with an asterisk (*).
All systems storing Personal Data must be kept physically secure, with strict perimeter controls and monitoring 24×7.
Network Access Controls
Firewall boundary controls must be maintained to enforce strict packet inspection and port blocking, based on blocking by default and only permitting minimally needed access.
Critical Operating System and Application security updates are mitigated within 60 days.
Penetration tests must be performed at least annually. Vulnerability scans must be performed at least quarterly. All critical risk findings must be mitigated within 60 days.
In scope engineering work must be performed according to a well-defined software development life cycle (SDLC) to ensure the platform is well tested and bug free. Releases must follow a defined change management procedure to minimize downtime and risk.
Maintained Disaster Recovery and Business Continuity Programs are required to ensure the availability and integrity of Personal Data. Redundancy of technical systems and data storage must be employed to minimize downtime where practical. Backup systems must be in place at offsite alternate locations to withstand the loss of any given system or location. Backup data must be kept at least as secure as online data. All recovery plans must be tested at least annually.
Effective monitoring must be in place to ensure that all security controls continue to be sufficient to protect Personal Data, based on changes in data processing and security threats. Systems must log all access, and logs must be monitored for anomalies and security threats. All suspicious activities must receive appropriate response based on risk assessment.
Data Lifecycle Management
Personal Data is kept only as long as necessary. Data is returned and/or destroyed upon request and termination of services unless otherwise required by contract, legislation, or legal requirements. When data is no longer need it will be physically or electronically destroyed beyond all ability to recover.