Data Processing Agreement

Data Processing Agreement ("DPA")

Concluded between AgencyAnalytics (the “Processor”) And

the Company

Hereafter referred to collectively as the “Parties”

WHEREAS

A) This DPA forms part of the contract for services under the AgencyAnalytics Terms and Conditions (the "Principal Agreement"). This DPA is supplemental to, and forms an integral part of, the Principal Agreement and introduces further contractual provisions to ensure the protection and security of Personal Data passed between the Company and the Processor;

B) This DPA is effective upon its incorporation to the Principal Agreement, which incorporation may be specified in the Principal Agreement or an executed amendment to the Principal Agreement. Upon its incorporation into the Principal Agreement, this DPA will form a part of the Principal Agreement. In case of any conflict or inconsistency with the terms of the Principal Agreement, this DPA will take precedence over the terms of the Principal Agreement to the extent of such conflict or inconsistency;

C) The Company acts as a Data Controller;

D) The Processor acts as a Data Processor;

E) The Company wishes to subcontract certain Services, which imply the processing of Personal Data, to the Processor; and

F) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the European Union (EU) Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “General Data Protection Regulation” or “GDPR”).

IT IS AGREED AS FOLLOWS:

1. Definitions and Interpretation

   1. Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:

   2. “Company” means users of the Processor’s Services;

   3. “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of the Company pursuant to or in connection with the Principal Agreement;

   4. “Contracted Processor” means a Subprocessor;

   5. “DPA” means this Data Processing Agreement;

   6. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

   7. “EEA” means the European Economic Area;

   8. “EU Data Protection Laws” means data protection laws applicable in Europe including: (i) the GDPR (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) GDPR as it forms parts of the United Kingdom domestic law by virtue of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 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) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 ("UK GDPR"); and (iv) Swiss Federal Data Protection Act; in each case, as may be amended, superseded or replaced;

   9. “Data Transfer” means:

      1. a transfer of Company Personal Data from the Company to a Contracted Processor; or

      2. an onward transfer of Company Personal Data from a Contracted Processor to a Subprocessor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

   10. “Services” means the metrics and reporting services the Processor provides;

   11. “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the DPA;

   12. The terms, “Commission”, “Controller”, “Data Subject”, “Data Protection Impact Assessment”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly;

   13. Any other terms not defined herein shall have the meaning as set forth in the Principal Agreement.

2. Processing of Company Personal Data and Compliance with Data Protection Laws

   1. Processor shall:

      1. comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and

      2. not process Company Personal Data other than on the Company’s documented instructions.

   2. Company shall:

      1. comply with all applicable Data Protection Laws.

      2. indemnify, save harmless and defend the Processor against all claims, proceedings, liabilities, fines, awards, damages, costs, expenses (including all legal cost and/or attorneys fees) associated with the Company’s failure to comply with applicable Data Protection Laws and/or with respect to any failure of the Company to adhere to this DPA.

      3. The Processor shall immediately inform the Company if instructions given by the Company, in the opinion of the Processor, contravene EU Data Protection Laws.

3. Personnel

   1. Parties’ shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Data Protection Laws in the context of that individual’s duties, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

   1. Parties are responsible for independently determining whether data security systems adequately meet obligations under applicable Data Protection Laws. Parties will also implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32 of the GDPR.

   2. In assessing the appropriate level of security, Processor shall take account the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Subprocessing

   1. Customer acknowledges and agrees that Processor may engage Sub-Processors to Process Personal Data on Customer’s behalf. The current list of Sub-Processors engaged in Processing Personal Data in connection with access to the Software and Services, including a description of their processing activities and countries of location, is accessible via Annex I (“Sub-Processors List”) Annex I as set out in Annex III. Customer hereby consents to these Sub-Processors, their locations and Processing activities as it pertains to Personal Data of Customer. Customer acknowledges and agrees that (a) Processor’s Affiliates may be retained as Sub-Processor(s) by Processor; and (b) Processor and Processor’s Affiliates respective may engage third-parties Sub- Processor(s) in connection to providing access to the Software and Services. Customer will be given not less than 30 days’ prior written notification of any addition to Sub-Processors . As a condition to permitting a third-party Sub-Processor to process Personal Data, Processor or Processor’s Affiliates will enter into a written agreement with each Sub-Processor containing in substance data protection obligations that provide at least the same level of protection for Personal Data as those in this DPA, to the extent applicable to the nature of the services provided by such Sub-Processor.

   2. Customer may, acting in good faith, reasonably object to Processor’s use of a new Sub- Processor (e.g., if making Personal Data available to the Sub-Processor may violate Data Protection Laws or weaken the protections for such Personal Data) by notifying Processor promptly in writing within thirty (30) days after receipt of Processor’s notice in accordance with the mechanism set out in Section 5.1 above. Such notice will include the basis of Customer’s reasonable objections. If Customer objects to a new Sub-Processor, as permitted herein, Customer may terminate the underlying agreement between the parties, by providing written notice to Processor. In the event of such a termination, Processor will promptly, if applicable, refund Customer any prepaid but unused fees for the remainder of the applicable Term after the effective date of termination, without liability to either party. If Customer does not object within thirty (30) days after receipt of the notice, Customer is deemed to have accepted the new Sub-Processor.

   3. Processor will be liable for the acts and omissions of its Sub-Processors to the same extent Processor would be liable if performing the services of each Sub-Processor directly under the terms of this DPA, except as otherwise provided in the Principal Agreement.

6. Data Subject Rights

   1. Processor shall assist the Company by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

   2. Processor shall:

      1. promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

      2. ensure that it does not respond to that request except on the documented instructions of Company or as required by Data Protection Laws to which the Parties are subject, in which case Processor shall to the extent permitted by Data Protection Laws inform the Company of that legal requirement before the Processor responds to the request.

7. Personal Data Breach Liability

   1. Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

   2. Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

   3. Company shall notify Processor without undue delay upon Company becoming aware of a Personal Data Breach affecting Processor Personal Data, providing Processor with sufficient information to allow the Processor to meet any obligations to report or inform Data Subjects of Personal Data Breach under Data Protection Laws.

   4. Company shall co-operate with the Processor and take reasonable commercial steps as are directed by Processor to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

   5. In the event of a Personal Data Breach and subject to section 7.7.1, the Parties agree to indemnify each other against any and all claims made against the breaching party.

   6. Save and except for the indemnity provided in section 2.2.2, neither Party shall be liable for any indirect or consequential damages, such as (but not limited to) loss of revenue, loss of profit, loss of opportunity, loss of goodwill and third-party claim.

   7. Limitation of liability

      1. Any reference in this section to damages caused by the Company also includes damages caused by its employees, as well as its subcontractors, agents, and representatives, and any of their employees. Whether the claim is based in contract, tort, or another cause of action, the Processor’s liability for all damages suffered by the Company caused by the Processor’s performance of or failure to perform the Contract is limited to the value of six (6) months of the Principal Agreement. This limit applies not only to damages to the Company, but also limits the amount that the Processor must reimburse to the Company if the Processor is required, as a result of joint and several liability, to pay a third party in respect of damages caused by the Processor.

8. Data Protection Impact Assessment and Prior Consultation

   1. Processor shall provide reasonable assistance to the Company with any Data Protection Impact Assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, the Processor.

9. Deletion or return of Company Personal Data

   1. Processor shall promptly, and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of Company Personal Data.

10. Data Transfer

    1. The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) or which are not otherwise subject to an adequacy decision under EU Data Protection Laws  without the prior written notification to the Company (which notification and transfer  includes transfer to the locations of the Sub-Processors listed or notified in accordance with section 5 above). If personal data processed under this DPA is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.

11. Insurance

    1. The Company represents and warrants to the Processor that it has and shall maintain the following insurance throughout the Term of this DPA:

       1. General liability insurance with a limit of at least $5,000,000 per occurrence. Coverage to include cross liability and severability of interests;

       2. Professional liability (errors & omissions) insurance covering actual or alleged breach of duty, neglect, error, misstatements, misleading statements for acts or omissions committed by Processor in the provision of Services to Company, with a limit of at least $2,000,000 per claim; and

       3. Cyber insurance including coverage for privacy liability and network security, with a limit of at least $5,000,000 per claim.

    2. The Company shall add the Processor as an additional loss payee (or an additional insured) on the above noted policies.

12. Audit

    1. Company can request an audit of Processor’s  processing activities covered by this DPA (“Audit”). An Audit shall be conducted by Company or a third-party auditor reasonably acceptable to Processor: (i) acting reasonably, in good faith, and in a proportional manner, taking into account the nature and complexity of the Services used by Company;  (ii) up to one time per year with at least one weeks’ advance written notice; and (iii) during Processor’s normal business hours, under reasonable duration and shall not unreasonably interfere with Processor’s day-to-day operations. Company acknowledges that Processor operates a multi-tenant cloud environment. Before any Audit commences, Processor and Company shall mutually agree upon the scope, timing, and duration of the audit and the reimbursement rate for which Company shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by or on behalf of Processor. Processor shall have the right to reasonably adapt the scope of any Audit to avoid or mitigate risks with respect to, and including, service levels, availability, and confidentiality of other Processor customers’ information.

13. General Terms

    1. Confidentiality. Each Party must keep this DPA and information it receives about the other Party and its business in connection with this DPA (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

       1. disclosure is required by law; or

       2. the relevant information is already in the public domain.

    2. Notices. All notices and communications given under this DPA must be in writing.

       1. Processor shall be notified by email sent to the address: support@agencyanalytics.com

    3. Term. The term of this DPA shall follow the term of the Principal Agreement.

14. Governing Law and Jurisdiction

    1. This DPA is governed by the laws of Ontario, Canada.

    2. Any dispute arising in connection with this DPA, which the Parties are not able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Ontario, Canada.

15. Counterparts

    1. This agreement may be executed and delivered in any number of counterparts, each of which when executed and delivered is an original but all of which taken together constitute one and the same agreement.

Annex 1 - Sub-Processors List