EU Data Processing Addendum

We provide the latest version of the Avada DPA for you to download here on this page. You can find additional information regarding GDPR here, as well as more information about our security practices here.

Executing a DPA does not change any of our practices concerning the protection of your privacy and your data. Everyone using our service gets the same high standards of privacy and security.

If you require an executed DPA with us, please email [email protected]

This Data Processing Addendum (“DPA”), forms part of the Agreement between Avada Commerce, Inc. ("avada.io", and "proofo.io") and (“Subscriber”) and is effective on the date both parties execute this DPA (“Effective Date”).

All capitalized terms not defined in this DPA will have the meanings set forth in the Agreement. Terms used but not defined in this DPA, such as “controller,” “data subject,” “personal data,” “processing,” and “processor” will have the same meaning as set forth in the EU Data Protection Law.

“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.

“Agreement” means Avada’s Terms of Service, which govern the provision of the Services to Subscriber, as such terms may be updated by Avada from time to time.

“Data Protection Laws” means all data protection and privacy laws applicable to the processing of personal data under the Agreement, including, where applicable, EU Data Protection Law.

“EU Data Protection Law” means (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 (“Directive”) and on and after 25 May 2018, Regulation 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 (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).

“EEA” means the European Economic Area, United Kingdom and Switzerland.

“Privacy Shield” means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017 respectively.

“Privacy Shield Principles” means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Subscriber Data.

“Services” means any product or service provided by Avada to Subscriber pursuant to the Agreement.

“Subprocessors” means the other processors that are used by Avada to process Personal Data.

“Subscriber Data” means any personal data that Avada processes on behalf of Subscriber as a processor in the course of providing Services, as more particularly described in this DPA.

The parties agree that the DPA shall replace any existing data processing addendum the parties may have previously entered into in connection with the Services.

Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.

Subscriber further agrees that any regulatory penalties incurred by Avada in relation to the Subscriber Data that arise as a result of, or in connection with, Subscriber’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce Avada’s liability under the Agreement as if it were liability to the Subscriber under the Agreement.

No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

This DPA applies where and only to the extent that Avada processes Subscriber Data that originates from the EEA or that is otherwise subject to EU Data Protection Law on behalf of Subscriber as a processor in the course of providing Services pursuant to the Agreement.

Part A and Exhibits A and B of this DPA shall apply to the processing of Subscriber Data within the scope of this DPA from the Effective Date.

Part B shall apply to the processing of Subscriber Data within the scope of the DPA from and including 25th May 2018. For the avoidance of doubt, Part B shall apply in addition to, and not in substitution for, the terms in Part A.

Role of the Parties. As between Avada and Subscriber, Subscriber is controller of Subscriber Data, and Avada shall process Subscriber Data only as a processor acting on behalf of Subscribers.

Subscriber Processing of Subscriber Data. Subscriber agrees that (i) it shall comply with its obligations as a controller under Data Protection Laws in respect of its processing of Subscriber Data and any processing instructions it issues to Avada; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Avada to process Subscriber Data and provide the Services pursuant to the Agreement and this DPA.

Avada Processing of Subscriber Data. Avada shall process Subscriber Data only for the purposes described in this DPA and only in accordance with Subscriber’s documented, lawful instructions. The parties agree that this DPA and the Agreement set out the Subscriber’s complete and final instructions to Avada in relation to the processing of Subscriber Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Subscriber and Avada.

Details of Data Processing

(a) Subject matter: The subject matter of the data processing under this DPA is the Subscriber Data.

(b) Duration: As between Avada and Subscriber, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.

(c) Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Subscriber and the performance of Avada’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.

(d) Nature of the processing: Avada provides email messaging, analytics technology and other related services, as described in the Agreement.

(e) Categories of data subjects: Any individual accessing and/or using the Services through the Subscriber’s account (“Users”); and any individual: (i) whose email address is included in the Subscriber’s Distribution List; (ii) whose information is stored on or collected via the Services, or (iii) to whom Users send emails or otherwise engage or communicate with via the Services (collectively, “End Users”).

(f) Types of Subscriber Data:

(i) Subscriber and Users: identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility);

(ii) End Users: identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address), personal interests or preferences (including purchase history, marketing preferences and publically available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information).

Notwithstanding anything to the contrary in the Agreement (including this DPA), Subscriber acknowledges that Avada shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered personal data under Data Protection Laws, Avada is the controller of such data and accordingly shall process such data in accordance with the Avada Privacy Policy and Data Protection Laws.

Tracking Technologies. Subscriber acknowledges that in connection with the performance of the Services, Avada employs the use of cookies, unique identifiers, web beacons and similar tracking technologies (“Tracking Technologies”). Subscriber shall maintain appropriate notice, consent, opt-in and opt-out mechanisms as are required by Data Protection Laws to enable Avada to deploy Tracking Technologies lawfully on, and collect data from, the devices of End Users (defined below) in accordance with and as described in the Avada Cookie Statement.

Authorized Subprocessors. Subscriber agrees that Avada may engage Subprocessors to process Subscriber Data on Subscriber’s behalf. The Subprocessors currently engaged by Avada and authorized by Subscriber are listed in Exhibit A.

Subprocessor Obligations. Avada shall: (i) enter into a written agreement with the Subprocessor imposing data protection terms that require the Subprocessor to protect the Subscriber Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Subprocessor that cause Avada to breach any of its obligations under this DPA.

Security Measures. Avada shall implement and maintain appropriate technical and organizational security measures to protect Subscriber Data from Security Incidents and to preserve the security and confidentiality of the Subscriber Data, in accordance with Avada’s security standards described in this DPA and at https://Avada/security (“Security Measures”).

Updates to Security Measures. Subscriber is responsible for reviewing the information made available by Avada relating to data security and making an independent determination as to whether the Services meet Subscriber’s requirements and legal obligations under Data Protection Laws. Subscriber acknowledges that the Security Measures are subject to technical progress and development and that Avada may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Subscriber.

Subscriber Responsibilities. Notwithstanding the above, Subscriber agrees that except as provided by this DPA, Subscriber is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Subscriber Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Subscriber Data uploaded to the Services.

Upon reasonable request, Avada will verify its compliance with this DPA, provided that Subscriber shall not exercise this right more than once per year.

Data center locations. Avada may transfer and process Subscriber Data anywhere in the world where Avada, its Affiliates or its Subprocessors maintain data processing operations. Avada shall at all times provide an adequate level of protection for the Subscriber Data collected, transferred, processed, or retained in accordance with the requirements of Data Protection Laws.

Privacy Shield. To the extent that Avada processes any Subscriber Data protected by EU Data Protection Law under the Agreement and/or that originates from the EEA, to the United States, a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for personal data, the parties acknowledge that Avada shall be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Subscriber Data by virtue of having self- certified its compliance with Privacy Shield. Avada agrees to protect such personal data in accordance with the requirements of the Privacy Shield Principles. If Avada is unable to comply with this requirement, Avada shall inform Subscriber.

Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8.2 shall not apply if and to the extent that Avada adopts an alternative data export solution with Subscriber for the lawful transfer of personal data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which personal data is transferred).

Confidentiality of processing. Avada shall ensure that any person who is authorized by Avada to process Subscriber Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

Security Incident Response. Upon becoming aware of a Security Incident, Avada shall notify Subscriber without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Subscriber.

Avada shall (i) provide an up-to-date list of the Subprocessors it has appointed upon written request from Subscriber; and (ii) notify Subscriber (for which email shall suffice) if it adds Subprocessors at least 10 days prior to any such changes.

Subscriber may object in writing to Avada’s appointment of a new Subprocessor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Subscriber may suspend or terminate the Agreement (without prejudice to any fees incurred by Subscriber prior to suspension or termination).

Upon termination or expiration of the Agreement, Avada shall (at Subscriber’s election) delete or return to Subscriber all Subscriber Data (including copies) in its possession or control, save that this requirement shall not apply to the extent Avada is required by applicable law to retain some or all of the Subscriber Data, which Subscriber Data Avada shall securely isolate and protect from any further processing, except to the extent required by applicable law.

The Services provide Subscriber with a number of controls that Subscriber may use to retrieve, correct, delete or restrict Subscriber Data, which Subscriber may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Subscriber is unable to independently access the relevant Subscriber Data within the Services, Avada shall (at Subscriber’s expense) provide reasonable cooperation to assist Subscriber to respond to any requests from individuals or applicable data protection authorities relating to the processing of personal data under the Agreement. In the event that any such request is made directly to Avada, Avada shall not respond to such communication directly without Subscriber’s prior authorization, unless legally compelled to do so. If Avada is required to respond to such a request, Avada shall promptly notify Subscriber and provide it with a copy of the request unless legally prohibited from doing so.

If a law enforcement agency sends Avada a demand for Subscriber Data (for example, through a subpoena or court order), Avada shall attempt to redirect the law enforcement agency to request that data directly from Subscriber. As part of this effort, Avada may provide Subscriber’s basic contact information to the law enforcement agency. If compelled to disclose Subscriber Data to a law enforcement agency, then Avada shall give Subscriber reasonable notice of the demand to allow Subscriber to seek a protective order or other appropriate remedy unless Avada is legally prohibited from doing so.

To the extent Avada is required under EU Data Protection Law, Avada shall (at Subscriber’s expense) provide reasonably requested information regarding the Services to enable the Subscriber to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.