Data Processing Amendment (DPA)
Last revised on March 20, 2020
This Data Processing Amendment applies to the websites: compulsivo.co and www.prefinery.com (the "Sites") owned and operated by Compulsivo, Inc. (referred to in this Data Processing Amendment as "Compulsivo" "we" or "us" or "our").
Introduction to this Amendment
Processing personal data in a secure, fair, and transparent way is extremely important to us at Compulsivo. As part of this effort, we process personal data in accordance with EU Data Protection Laws including EU's General Data Protection Regulation ("GDPR"), the EU/US Privacy Shield principles ("Privacy Shield"), and Non-EU Data Protection Laws governing the handling of various types of personal data including the California Consumer Privacy Act ("CCPA").
To better protect individuals' personal data, we are providing these terms to govern Compulsivo's and your handling of personal data (the "Data Processing Amendment" or "DPA"). This DPA amends and supplements your Terms of Service ("ToS") and requires no further action on your part.
If you do not agree to this DPA, you may discontinue the use of our Sites and our services and cancel your account.
It is important that all parties understand what data and whose data is protected under this DPA. Each party has respective obligations to protect personal data; therefore, the following definitions explain the scope of this DPA and the mutual commitments to protect personal data.
"You" or "Customer" refers to the company or organization that signs up to use our Sites and our services to manage the relationships with your consumers or service users.
"Party" refers to Compulsivo and/or the customer depending on the context.
"Personnel" refers to those individuals who are employed by or are under contract to perform a service on behalf of one of the parties. Personnel may have rights in their personal data (including business contact information) if they reside in the EU. It is important to be clear about how personnel's rights are protected.
"Sub-processor" is a Third-party, independent contractors, vendors and suppliers who provide specific services and products related to our Sites and our services, such as hosting, credit card processing and fraud screening, and mailing list hosting ("third-party" or "outside contractor" shall have similar meanings).
"Incident" means: (a) a complaint or a request with respect to the exercise of an individual's rights under the GDPR; (b) an investigation into or seizure of the personal data by government officials, or a specific indication that such an investigation or seizure is imminent; or (c) any breach of the security and/or confidentiality as set out in this DPA leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the personal data, or any indication of such breach having taken place or being about to take place.
"Sensitive Personal Data" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU Data Protection Directive 95/46/EC or any successor directive or regulation).
The terms, "Data Subject", "Personal Data", "Member State", "Controller", "Processor", and "Processing" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
For the sake of readability, we do not use initial capitalization of defined terms in this DPA. Defined terms are defined terms, irrespective of their format.
1. Undertakings regarding personal data
- Each party agrees that personal data shall be treated as confidential information under this DPA. In addition, each party shall at all times comply with applicable laws relating to data protection in the relevant jurisdiction with respect to each other's personal data.
- Personal Data shall remain the property of the disclosing party. Compulsivo acknowledges that customer is the controller and maintains control over data subject's personal data.
- Customer specifically agrees not to use our Sites and services to collect, store, process or transmit any Sensitive Personal Data. You acknowledge that Compulsivo is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that Compulsivo is neither HIPAA nor PCI DSS compliant. Compulsivo will have no liability for Sensitive Personal Data, notwithstanding anything to the contrary herein.
- Compulsivo will process customer's personal data only to the extent strictly necessary for the purpose of providing the services in accordance with the ToS and any further written instructions from the customer that are mutually agreed upon in writing. Compulsivo agrees that:
- it will implement and maintain a reasonable and appropriate security program comprising adequate security, technical and organizational measures to protect against unauthorized, unlawful or accidental processing, use, erasure, loss or destruction of, or damage to, customer personal data;
- it will not modify, alter, delete, publish or disclose any customer personal data to any third party, nor allow any third party to process such personal data on Compulsivo's behalf unless the third party is bound to similar confidentiality and data handling provisions;
- it shall ensure that access to personal data is limited to those personnel who require such access to perform its obligations under the ToS, and its personnel engaged in the processing of personal data are informed of the confidential nature of the personal data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Compulsivo shall ensure that such confidentiality obligations survive the termination of the personnel engagement; and
- it will only process customer personal data to the extent necessary to perform its obligations under the ToS, upon written instructions of the customer (only as mutually agreed upon), and in accordance with applicable laws.
- Upon termination of your account Compulsivo will delete, destroy, or anonymize the personal data in accordance with our standard backup and retention policy per the ToS, normally, no later than 30 days, unless we are required to retain personal data due to Union, Member State or United States laws; in which case Compulsivo reserves the right to retain personal data.
- Compulsivo is certified under the EU/US Privacy Shield Framework and agrees to remain in compliance, therefore, customer may transfer personal data from the EU to Compulsivo, as this transfer mechanism is deemed to be adequate for the purposes of GDPR. Compulsivo shall not transfer any customer personal data outside of the US or to other locations not deemed to be "adequate" under EU law without providing reasonable notice under the ToS to the customer.
- The parties acknowledge that customer may from time to time be in possession of personal data relating to Compulsivo's personnel. Compulsivo warrants that it has provided all necessary notifications and obtained all necessary consents, authorizations, approvals and/or agreements as required under any applicable law in order to enable: (i) the disclosure of Compulsivo's personal data to customer; and (ii) further processing of such Compulsivo personal data by customer.
2. Undertakings regarding sub-processors
- The parties acknowledge that Compulsivo may engage third-party sub-processors in connection with the obligations of the ToS. For any sub-processor with which Compulsivo engages, we will enter into a written agreement containing data protection obligations no less protective than those in this amendment and as required to protect customer's personal data to the standard required by the GDPR
- Compulsivo shall make available to customer the current list of sub-processors used by our Sites by posting those lists online at: Prefinery Sub-processors. Compulsivo shall update the lists with details of any addition or replacement of sub-processors at least 10 days prior to any change. If customer has a reasonable basis to object to Compulsivo's change in sub-processors, customer shall notify Compulsivo promptly within 10 business days after receipt of Compulsivo's notice regarding sub-processor changes. Customer may object to a new sub-processor appointment or replacement, provided such objection is based on reasonable grounds related to data protection. Compulsivo will use reasonable efforts to work in good faith with customer to find an acceptable, reasonable, alternate solution. If the parties are not able to agree to an alternate solution, customer may suspend or terminate their account.
3. Customer undertakings and Compulsivo's assistance
- Customer warrants that it has all necessary rights to provide to Compulsivo the personal data for processing in connection with the provision of our Sites and our services.
- To the extent required by applicable law, customer is responsible for ensuring that any data subject consents that may be necessary to this processing are obtained, and for ensuring that a record of such consents is maintained, including any consent to use personal data that is obtained from third parties. Should such consent be revoked by a data subject, customer is responsible for communicating the fact of such revocation to Compulsivo, and Compulsivo remains responsible for implementing any customer instruction with respect to the further processing of that personal data, or, as may be in accordance with any of Compulsivo's legal obligations.
- Customer understands, as a controller, that it is responsible (as between customer and Compulsivo) for:
- determining the lawfulness of any processing, performing any required data protection impact assessments, and accounting to regulators and individuals, as may be needed;
- making reasonable efforts to verify parental consent when data is collected on a data subject under 16 years of age;
- providing relevant privacy notices to data subjects as may be required in your jurisdiction, including notice of their rights and provide the mechanisms for individuals to exercise those rights;
- responding to requests from individuals about their data and the processing of the same, including requests to have personal data altered, corrected, or erased, and providing copies of the actual data processed;
- implementing your own appropriate technical and organizational measures to ensure and demonstrate processing in accord with this DPA;
- notifying individuals and any relevant regulators or authorities of any incident as may be required by law in your jurisdiction.
- Compulsivo shall assist the customer by implementing appropriate technical and organizational measures, insofar as this is reasonably and commercially possible, in fulfilling customer's obligations to respond to individuals' requests to exercise rights under the GDPR.
- Compulsivo shall assist the customer by implementing appropriate technical and organizational measures, insofar as this is reasonably and commercially possible, to ensure compliance with articles 32 to 36 (inclusive) of the GDPR.
- Customer may contact Compulsivo in writing to schedule an audit of the procedures relevant to the protection of personal data. Customer shall reimburse Compulsivo for any time or resources expended for any such on-site audit at the Compulsivo'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 Compulsivo shall mutually agree upon the scope, timing, and duration of the audit. Customer shall promptly notify Compulsivo with information regarding any non-compliance discovered during the course of an audit.
4. Incident Management
- When either party becomes aware of an incident that impacts the processing of personal data, it shall promptly notify the other about the incident and shall reasonably cooperate in order to enable the other party to perform a thorough investigation into the incident, to formulate a correct response, and to take suitable further steps in respect of the incident.
- Both parties shall at all times have in place written procedures which enable them to promptly respond to the other about an incident. Where the incident is reasonably likely to require a data breach notification under applicable laws, the party responsible for the incident shall notify the other without undue delay of having become aware of such an incident.
- Any notifications made under this section shall be made to email@example.com (when made to Compulsivo) and to our point of contact with you (when made to the customer), and shall contain: (i) a description of the nature of the incident, including, where possible, the categories and approximate number of individuals concerned and the categories and approximate number of records concerned; (ii) the name and contact details of the point of contact where more information can be obtained; (iii) a description of the likely consequences of the incident; and (iv) a description of the measures taken or proposed to be taken to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
5. Liability and Indemnity
- Each party indemnifies the other and holds them harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the indemnified party and arising directly or indirectly out of or in connection with a breach of this DPA.
6. Duration and Termination
- This DPA shall come into effect on March 20, 2020 and shall continue until it is changed or terminated in accordance with the ToS.
- Termination or expiration of this DPA shall not discharge the parties from the confidentiality obligations herein.
Annex A - Jurisdiction-Specific Terms
- The definitions of: "controller" includes "Business"; "processor" includes "Service Provider"; "data subject" includes "Consumer"; "personal data" includes "Personal Information"; in each case as defined under CCPA.
- "Process," "Processed" or "Processing" means any operation or set of operations which is performed on Personal Information, or on sets of Personal Information, whether or not by automated means.
- Compulsivo's obligations regarding data subject requests, as described in Section 3(d) and 3(e) (data subject rights and cooperation) of this DPA, apply to Consumer's rights under the CCPA.
- Notwithstanding anything to the contrary, Customer Personal Information is the Personal Information that Compulsivo processes on behalf of Customer under the Agreement. Compulsivo may Process Customer Personal Information for the sole purpose of performing its obligations under the Agreement and shall not use Customer Personal Information for any other purpose without the express written consent of Customer. In particular, Compulsivo shall not: (i) sell, as it is defined in the CCPA, Customer Personal Information or share Customer Personal Information with any third party without Customer's permission; (ii) retain, Customer or disclose Customer Personal Information for any purpose other than the purposes specified in this Agreement, including retaining, using or disclosing Customer Personal Information for a commercial purpose other than to provide its services to Customer; and (iii) retain, use or disclose Customer Personal Information outside of Compulsivo's business relationship with Customer. The parties acknowledge that any disclosure of Customer Personal Information pursuant to the Agreement does not confer any value under the Agreement.
- Compulsivo shall comply with all applicable requirements of the CCPA in the performance of its obligations under the Agreement, including implementing and maintaining reasonable security measures appropriate to the nature of the Personal Information, in order to protect Customer Personal Information from unauthorized access, destruction, use, modification, or disclosure.
- Where sub-processors process the personal data of our customers, Compulsivo takes steps to ensure that such sub-processors are Service Providers under the CCPA with whom Compulsivo has entered into a written contract that includes terms substantially similar to this DPA or are otherwise exempt from the CCPA's definition of "sale". Compulsivo conducts appropriate due diligence on its sub-processors.