Data Processing Addendum (GDPR and CCPA)

Effective Date: January 12, 2021

This Data Processing Addendum (this “DPA“) forms part of, and is subject to the provisions of, the Terms of Use. Capitalized terms that are not defined in this DPA have the meanings set forth in the Terms of Use.

    1. DEFINITIONS.  The following definitions apply solely to this DPA:
      1. the terms “controller,” “data subject,” “personal data,” “process,” “processing,” and “processor” have the meanings given to these terms in EU Data Protection Law.
      2. “Breach” means a breach of the Security Measures (as defined below) resulting in access to Medvantx’s equipment or facilities storing Your Controlled Data (as defined below) and the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Your Controlled Data transmitted, stored or processed by Medvantx on your behalf and instructions through the Services.
      3. “Content” means your User Content and any content provided to us from your End Users, including without limitation text, photos, images, audio, video, code, and any other materials.
      4. “EU Data Protection Law” means any data protection or data privacy law or regulation of Switzerland, the United Kingdom or any European Economic Area (“EEA”) country applicable to Your Controlled Data, including, as applicable, the GDPR and the e-Privacy Directive 2002/58/EC.
      5. “GDPR” means the EU General Data Protection Regulation 2016/679.
      6. “Security Measures” means the technical and organizational security measures set out in this DPA.
      7. “SCCs” means either: (i) the standard contractual clauses (without the optional clauses) for the transfer of personal data to data processors established in third countries adopted by the European Commission decision (C(2010)593) of 5 February 2010 (as may be amended from time to time by European Commission decision); or (ii) such other form of European Commission standard contractual clauses for transfers of personal data to processors adopted by the European Commission pursuant to the GDPR as notified by Medvantx to you; together, in either case with the details set out in Section 3 of this DPA serving as Appendix 1 and the Security Measures (as changed from time to time in accordance with this DPA) serving as Appendix 2 to the SCCs.
      8. “Sub-Processor” means an entity engaged by Medvantx to process Your Controlled Data.
      9. “Your Controlled Data” means the personal data in the Content Medvantx processes on your behalf and instructions as part of the Services, but only to the extent that you are subject to EU Data Protection Law in respect of such personal data. Your Controlled Data does not include personal data when controlled by us, including without limitation data we collect (including IP address, device/browser details and web pages visited prior to coming to Your Site) with respect to your End Users’ interactions with Your Site through their browser and technologies like cookies.
    2. APPLICABILITY. This DPA only applies to you if you or your End Users are located within the EEA, United Kingdom or Switzerland and only applies in respect of Your Controlled Data. You agree that Medvantx is not responsible for personal data that you have elected to process through Third Party Services or outside of the Services, including the systems of any other third-party cloud services, offline or on-premises storage.
    3. DETAILS OF DATA PROCESSING.
      1. Subject Matter. The subject matter of the data processing under this DPA is Your Controlled Data.
      2. Duration. As between you and us, the duration of the data processing under this DPA is determined by you.
      3. Purpose. The purpose of the data processing under this DPA is the provision of the Services initiated by you from time to time.
      4. Nature of the Processing / Processing Operations. The Services as described in the Terms of Use and initiated by you from time to time.
      5. Type / Categories of Personal Data. Your Controlled Data relating to you, your End Users or other individuals whose personal data is included in Content which is processed as part of the Services in accordance with instructions given through the Services.
      6. Special Categories of Data. Any special categories of data relating to you, your End Users or other individuals whose special categories of data are, where permitted by the Terms of Use, included in Content which is processed as part of the Services in accordance with instructions given through the Services.
      7. Categories of Data Subjects. You, Your End Users and any other individuals whose personal data is included in Content.
    4. PROCESSING ROLES AND ACTIVITIES.
      1. Medvantx as Processor and You as Controller. You are the controller and Medvantx is the processor of Your Controlled Data.
      2. Medvantx as Controller. Medvantx may also be an independent controller for some personal data relating to you or your End Users. Please see our Privacy Policy and Terms of Use for details about this personal data which we control. We decide how to use and process that personal data independently and use it for our own purposes. When we process personal data as a controller, you acknowledge and confirm that neither this DPA nor the Terms of Use creates a joint-controller relationship between you and us. If we provide you with personal data controlled by us, such as in any access to data regarding your End Users’ interactions with Your Site, you receive that as an independent data controller and are responsible for compliance with EU Data Protection Law in that regard.
      3. Description of Processing Activities. We will process Your Controlled Data for the purpose of providing you with the Services, as may be used, configured or modified through the Services (the “Purpose”). For example, depending on how you use the Services, we may process Your Controlled Data in order to: (a) enable you to integrate content or features from a social media platform on Your Site; or (b) email your End Users on your behalf.
      4. Compliance with Laws. You will ensure that your instructions comply with all laws, regulations and rules applicable in relation to Your Controlled Data and that Your Controlled Data is collected lawfully by you or on your behalf and provided to us by you in accordance with such laws, rules and regulations. You will also ensure that the processing of Your Controlled Data in accordance with your instructions will not cause or result in us or you breaching any laws, rules or regulations (including EU Data Protection Law). You are responsible for reviewing the information available from us relating to data security pursuant to the Terms of Use and making an independent determination as to whether the Services meet your requirements and legal obligations as well as your obligations under this DPA. Medvantx will not access or use Your Controlled Data except as provided in the Terms of Use, as necessary to maintain or provide the Services or as necessary to comply with the law or binding order of a governmental, law enforcement or regulatory body.
    5. OUR PROCESSING RESPONSIBILITIES.
      1. How We Process. We will process Your Controlled Data for the Purpose and in accordance with the Terms of Use or instructions you give us through the Services. You agree that the Terms of Use and the instructions given through the Services are your complete and final documented instructions to us in relation to Your Controlled Data. Additional instructions outside the scope of this DPA require prior written agreement between you and us, including agreement on any additional fees payable by you to us for carrying out such instructions. We will promptly inform you if, in our opinion, your instructions infringe EU Data Protection Law, or if we are unable to comply with your instructions. We will notify you when applicable laws prevent us from complying with your instructions, except if such disclosure is prohibited by applicable law on important grounds of public interest, such as a prohibition under law to preserve the confidentiality of a law enforcement investigation or request.
      2. Notification of Breach. We will provide you notice without undue delay after becoming aware of and confirming the occurrence of a Breach for which notification to you are required under EU Data Protection Law. To assist you in complying with your notification obligations under Articles 33 and 34 of the GDPR, we will provide you with such information about the Breach as we are reasonably able to disclose to you, taking into account the nature of the Services, the information available to us and any restrictions on disclosing the information such as for confidentiality. Our obligation to report or respond to a Breach under this Section is not and will not be construed as an acknowledgement by Medvantx of any fault or liability of Medvantx with respect to the Breach. Despite the foregoing, Medvantx’s obligations under this Section do not apply to incidents that are caused by you, any activity on your Account(s) and/or Third-Party Services.
      3. Notification of Inquiry or Complaint. We will provide you notice, if permitted by applicable law, upon receiving an inquiry or complaint from an End User, or other individual whose personal data is included in your Content, or a binding demand (such as a court order or subpoena) from a government, law enforcement, regulatory or other body in respect of Your Controlled Data.
      4. Reasonable Assistance with Compliance. We will, to the extent that you cannot reasonably do so through the Services or otherwise, provide reasonable assistance to you in respect of your fulfillment of your obligation as controller to respond to requests by data subjects under Chapter 3 of the GDPR, taking into account the nature of the Services and information available to us. You will be responsible for our reasonable costs arising from our provision of such assistance.
      5. Security Measures and Safeguards. We will maintain the Security Measures and the safeguards set out here. We may change or update the Security Measures or safeguards but will not do so in a way that adversely affects the security of Your Controlled Data. We will take steps to ensure that any natural person acting under our authority who has access to Your Controlled Data does not process it except on our instructions, unless such person is required to do so under applicable law, and that personnel authorized by us to process Your Controlled Data have committed themselves to relevant confidentiality obligations or are under an appropriate statutory obligation of confidentiality.
      6. Sub-Processors. You agree that we can share Your Controlled Data with Sub-Processors in order to provide you the Services. We will impose contractual obligations on our Sub-Processors, and contractually obligate our Sub-Processors to impose contractual obligations on any further sub-contractors which they engage to process Your Controlled Data, which provide the same level of data protection for Your Controlled Data in all material respects as the contractual obligations imposed in this DPA, to the extent applicable to the nature of the Services provided by such Sub-Processor
      7. Medvantx Audits. Medvantx may (but is not obliged to) use external or internal auditors to verify the adequacy of our Security Measures
      8. Customer Audits and Information Requests. You agree to exercise any right you may have to conduct an audit or inspection by instructing Medvantx to carry out the audit described immediately above. You agree that you may be required to agree to a non-disclosure agreement with Medvantx before we share any such report or outcome from such audit with you and that we may redact any such reports as we consider appropriate. You will pay our costs in considering and addressing any Request. Any information and documentation provided by Medvantx or its auditors pursuant to this Section will be provided at your cost. If we decline to follow any instruction requested by you regarding audits or inspections, you may cancel any affected Paid Services.
      9. Questions. Upon your reasonable request to us for information regarding our compliance with the obligations set forth in this DPA, we shall, where such information is not otherwise available to you, provide you with written responses, provided that you agree not to exercise this right more than one (1) time per calendar year (unless it is necessary for you to do so to comply with EU Data Protection Law). The information to be made available by Medvantx under this Section is limited to solely that information necessary, taking into account the nature of the Services and the information available to Medvantx, to assist you in complying with your obligations under the GDPR in respect of data protection impact assessments and prior consultation. You agree that you may be required to agree to a non-disclosure agreement with Medvantx before we share any such information with you.
      10. Requests. You can delete or access a copy of some of Your Controlled Data through the Services. For any of Your Controlled Data which may not be deleted or accessed through the Services, upon your written request, we will, with respect to any of Your Controlled Data in our or our Sub-Processor’s possession that we can associate with a data subject, subject to the limitations described in the Terms of Use and unless prohibited by applicable law or the order of a governmental, law enforcement or regulatory body: (a) return such data and copies of such data to you provided that you make such request within no more than ninety (90) days after the cancellation of the applicable Paid Services; or (b) delete, and request that our Sub-Processors delete, such data (excluding in the case of (a) or (b) any of such data which we maintain in order to comply with applicable law or as otherwise set forth in the Terms of Use). Otherwise, we will delete Your Controlled Data in accordance with our data retention policy.
    6. DATA TRANSFERS. Taking into account, in particular, the Security Measures and safeguards provided for in this DPA and the specific circumstances, you instruct Medvantx to transfer Your Controlled Data away from the country in which such data was originally collected to other countries globally in which Medvantx or any sub-processors operate, in particular, to the US. Unless such transfer is otherwise permitted under EU Data Protection Law, the SCCs apply between you and Medvantx, Inc. to Your Controlled Data that is transferred, either directly or via onward, to any country not recognized under EU Data Protection Law as providing an adequate level of protection for Your Controlled Data. You and Medvantx, Inc. are deemed to have executed and agreed to the SCCs upon the earlier of: (i) you agreeing to the Terms of Use, including any future amendments; or (ii) this DPA applying to you and/or your use of the Services in accordance with Section 2 of this DPA. Where the SCCs apply:
      1. you are the “data exporter” and Medvantx, Inc. is the “data importer” as those terms are defined in the SCCs;
      2. the ‘data subjects’, ‘categories of data’, ‘special categories of data’ and ‘processing operations’ as identified in Section 3 of this DPA shall serve as Appendix 1 of the SCCs;
      3. the technical and organizational measures implemented by Medvantx, Inc. are the Security Measures (as may be changed from time to time, for example to reflect technological developments) and are binding on Medvantx, Inc. as if set out in Appendix 2 of the SCCs;
      4. you will comply with the SCCs and, in countries where regulatory approval is required for use of the SCCs, you are responsible for obtaining such approval;
      5. you agree that any sub-processor agreement to be provided to you under clause 5(j) of the SCCs is to be provided to you on your request only, is confidential and will be limited to the data protection provisions related to Your Controlled Data with commercial information redacted;
      6. the general consent given under this DPA to the use of a sub-processor is also consent under clause 11 of the SCCs;
      7. you will use your rights of information, reports and audit under this DPA to satisfy any requirements you have for an audit in place of your audit rights under the SCCs, unless your audit requirements cannot reasonably be satisfied in this way in which case Medvantx, Inc. and you will mutually agree upon the details of the other means of audit (using the least intrusive means possible), including without limitation, as relevant, timing, duration, scope, control, manner, evidence requirements, auditor identity and fees (including for time expended by Medvantx, Inc.) for the other means of audit under the SCCs. Medvantx, Inc. will not use this to unreasonably delay performance of the other means of audit;
      8. you agree that Your Controlled Data will, for the purposes of clause 12(1) of the SCCs, be deleted in the manner described in this DPA and certification of deletion is only required under clause 12(1) of the SCCs upon your request;
      9. references in the SCCs to provisions of Directive 95/46/EC are treated as references to the relevant and appropriate provision of the GDPR; and
      10. Medvantx, Inc. is entitled to rely upon the provisions of the Terms of Use (including this DPA) as if a party thereto.
    7. CALIFORNIA CONSUMER PRIVACY ACT (“CCPA”). Medvantx is a Service Provider under CCPA and agrees to the following:
      1. Medvantx will not “sell” personal information it collects or processes on your behalf;
      2. Medvantx will retain, use, or disclose personal information it collects or processes on your behalf; only for the purposes of providing you the Services and will not retain, use or disclose such personal information for commercial purposes.
      3. Medvantx shall not retain, use or disclose personal information it collects or processes on your behalf  outside of the direct business relationship Medvantx and you.

      Medvantx certifies that it understands the restrictions set out in 7a., 7b., and 7c., and will comply with them.

    8. CONFLICT. In the event of a conflict between this DPA and the Terms of Use, this DPA will control. Where the SCCs apply, the SCCs take priority over the Terms of Use and this DPA to the extent of any conflict or inconsistency and nothing in the Terms of Use or this DPA varies or modifies the SCCs or affects the rights of any supervisory authority or data subject under the SCCs or EU Data Protection Law.
    9. MISCELLANEOUS. You are responsible for any costs and expenses arising from Medvantx’s compliance with your instructions or requests pursuant to the Terms of Use (including this DPA) which fall outside the standard functionality made available generally through the Services.