Data Processing Addendum
This Conover Company Data Processing Addendum (this “DPA”) forms part of, and is subject to the provisions of, The Conover Company Terms of Service. Capitalized terms that are not defined in this DPA have the meanings set forth in the Terms of Service.
1. Additional Definitions
The following definitions apply solely to this DPA:
a. the terms “controller”, “data subject”, “personal data”, “process,” “processing” and “processor” have the meanings given to these terms in the GDPR and shall also include any different but similar term used in any other Data Protection Laws.
b. “Breach” means a breach of the Security Measures resulting in access to The Conover Company’s equipment or facilities storing Your Controlled Data and the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Your Controlled Data transmitted, stored or processed by The Conover Company on your behalf and instructions through the Services.
c. “CCPA” means the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 – 1798.199), as may be modified from time to time, including by the California Privacy Rights Act.
d. “Covered Data” means your User Content and any content provided to us about your End Users, including without limitation text, photos, images, audio, video, code, and any other materials.
e. “Data Protection Laws” means any data protection or data privacy law or regulation applicable to Processing of Personal Data and any laws or regulations ratifying, implementing, adopting, or supplementing such laws, as any of the foregoing may be updated, amended or replaced from time to time. Data Protection Laws shall include without limitation: (i) EU Data Protection Laws; (ii) US Data Protection Laws; (iii) Canada’s Federal Personal Information Protection and Electronic Documents Act; and (iv) Brazil’s Lei Geral de Proteção de Dados. In no event will Data Protection Laws or this DPA include or cover any Industry-Specific Regulation.
f. “EU Data Protection Laws” means any data protection or data privacy law or regulation of Switzerland, the United Kingdom (“UK”) or any European Economic Area (“EEA”) country applicable to Your Controlled Data, including: (i) the GDPR; and (ii) the e-Privacy Directive 2002/58/EC.
g. “GDPR” means the EU General Data Protection Regulation 2016/679. References to GDPR and its provisions include the GDPR as amended and/or incorporated into UK law.
h. “Security Measures” means the technical and organizational security measures set out here.
i. “Sub-Processor” means an entity engaged by The Conover Company to process Your Controlled Data.
j. “US Data Protection Laws” means any data protection or data privacy law or regulation of any state in the US applicable to Your Controlled Data, including: (i) CCPA; and (ii) the Virginia Consumer Data Privacy Act (Va. Code §§ 59.1-575 to 59.1-584).
k. “Your Controlled Data” means any personal data included in the Covered Data. Your Controlled Data is data for which you determine the purposes and means of processing and for which The Conover Company acts on your behalf as a processor, service provider or similar term under applicable Data Protection Laws.
This DPA only applies to you if and to the extent The Conover Company and the Services process Your Controlled Data on your behalf. This DPA does not apply to you if: (a) your Covered Data does not include any personal data; or (b) Data Protection Laws do not apply to your Covered Data.
Section 6 of this DPA only applies to you to the extent Your Controlled Data includes personal data of data subjects located within the EEA, United Kingdom or Switzerland.
You agree that The Conover Company 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
3.1. Subject Matter. The subject matter of the data processing under this DPA is Your Controlled Data.
3.2. Duration. As between you and us, the duration of the data processing under this DPA is determined by you.
3.3. Purpose. The purpose of the data processing under this DPA is the provision of the Services initiated by you from time to time. In connection with providing the Services, we may process Your Controlled Data for business purposes such as: (a) maintaining and servicing your Account(s); (b) serving and rendering your websites to End Users; (c) enabling you to transact and communicate with your End Users; (d) providing analytics, auditing or verifying events related to your End Users’ visits to your websites; (e) ensuring the security and integrity of the Services; and (f) debugging, and improving the Services.
3.4. Nature of the Processing. The Services as described in the Agreement and initiated by you from time to time.
3.5. Type of Personal Data. Your Controlled Data relating to you, your End Users or other data subjects whose personal data is included in Covered Data which is processed as part of the Services in accordance with instructions given through the Services.
3.6. Categories of Data Subjects. You, Your End Users and any other individuals whose personal data is included in Covered Data.
4. Processing Roles and Activities.
4.1. The Conover Company as Processor and You as Controller. You are the controller and The Conover Company is the processor of Your Controlled Data.
4.3. Description of Processing Activities. We will process Your Controlled Data for the purpose of providing you with the Services (as further described in Section 3.3), 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.
4.4. Compliance with Laws. You will ensure that your instructions comply with all laws, regulations and rules applicable in relation to Your Controlled Data (including Data Protection Laws) 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 Data Protection Laws). You are responsible for reviewing the information available from us relating to data security pursuant to the Agreement and making an independent determination as to whether the Services meet your requirements and legal obligations as well as your obligations under this DPA. The Conover Company will not access or use Your Controlled Data except as provided in the Agreement, 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
5.1. How We Process. We will process Your Controlled Data for the Purpose and in accordance with the Agreement or instructions you give us through the Services. We will not “Sell” or “Share” (as such terms are defined under US Data Protection Laws) Your Controlled Data. You agree that the Agreement 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 Data Protection Laws, 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.
5.2. CCPA. To the extent you and Your Controlled Data are subject to the CCPA (such personal data, “CCPA Data”), with respect to such CCPA Data: (a) The Conover Company acts as a “Service Provider” and you are a “Business” (as such terms are defined under the CCPA); and (b) The Conover Company and you shall comply with our and your respective obligations under the CCPA. The Conover Company will not use Your Controlled Data outside of its direct business relationship with you, or for purposes other than the business Purpose, unless otherwise permitted by the CCPA. Notwithstanding the foregoing, you agree that in accordance with the CCPA, The Conover Company may: (i) use CCPA Data internally to build and improve the quality of the Services; or (ii) combine personal data of the End Users of you or other businesses for which The Conover Company is a service provider for the purposes of detecting data security incidents or protecting against fraudulent or illegal activity. This combined personal data includes IP addresses, preferences, web pages visited prior to coming to your or another business’ website, information about browser, network or device (such as browser type and version, operating system, internet service provider, preference settings, unique device IDs and language and other regional settings), and information about how End Users interact with your or another business’ website (such as timestamps, clicks, scrolling, browsing times and load times).
5.3. 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 is required under Data Protection Laws. We will, to assist you in complying with your notification obligations under Data Protection Laws (including Articles 33 and 34 of the GDPR), 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 5.3 is not and will not be construed as an acknowledgement by The Conover Company of any fault or liability of The Conover Company with respect to the Breach. Despite the foregoing, The Conover Company’s obligations under this Section 5.3 do not apply to incidents that are caused by you, any activity on your Account(s) and/or Third Party Services.
5.4. Notification of Inquiry or Complaint. We will provide you notice, if permitted by applicable law, upon receiving: (a) an inquiry or complaint from an End User or other individual whose personal data is included in Your Controlled Data; or (b) 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.
5.5. 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 Data Protection Laws (including Chapter 3 of the GDPR), taking into account the nature of the Services and information available to us. To the extent required by Data Protection Laws, you may ask us to assist you by verifying that we no longer retain or use any of Your Controlled Data related to a data subject who has made a valid request to you to delete their personal data. You will be responsible for our reasonable costs arising from our provision of any such assistance.
5.6. 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.
5.7. 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. A list of our current Sub-Processors is available here: https://www.conovercompany.com/legal/subprocessors-list/. Provided that your objection is reasonable and related to data protection concerns, you may object to any Sub-Processor by sending an email to [email protected] Conover Company.com. If you object to any Sub-Processor and your objection is reasonable and related to data protection concerns, we will use commercially reasonable efforts to make available to you a means of avoiding the processing of Your Controlled Data by the objected-to Sub-Processor. If we are unable to make available such suggested change within a reasonable period of time, we will notify you and if you still object to our use of such Sub-Processor, you may cancel or terminate the Services or, if possible, the portions of the Services that involve use of such Sub-Processor. Except as set forth in this Section 5.7, if you object to any Sub-Processors, you may not use or access the Services. You consent to our use of Sub-Processors as described in this Section 5.7. Except as set forth in this Section 5.7 or as you may otherwise authorize, we will not permit any Sub-Processor to access Your Controlled Data. Please note that: (a) if you are a Non-US User, The Conover Company, Inc. is one of our Sub-Processors; and (b) if you are a US User, The Conover Company Ireland is one of our Sub-Processors. The Conover Company will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of any Sub-Processor or their further sub-contractors that process Your Controlled Data and cause The Conover Company to breach any of The Conover Company’s obligations under this DPA, solely to the extent that The Conover Company would be liable under the Agreement if the act or omission was The Conover Company’s own.
5.8. The Conover Company Audits. The Conover Company may (where required by Data Protection Laws) use external or internal auditors to verify the adequacy of our Security Measures or as otherwise required by Data Protection Laws.
5.9. Customer Audits and Information Requests. You agree to exercise any right you may have to conduct an audit or inspection by instructing The Conover Company to carry out the audit described in Section 5.8. You agree that you may be required to agree to a non-disclosure agreement with The Conover Company 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. If The Conover Company does not follow such instruction or if it is legally mandatory for you to demonstrate compliance with Data Protection Laws by means other than reviewing a report from such an audit, you may only request a change in the following way:
a. First, submit a request for additional information in writing to The Conover Company, specifying all details required to enable The Conover Company to review this request effectively, including without limitation the information being requested, what form you need to obtain it in and the underlying legal requirement for the request (the “Request”). You agree that the Request will be limited to information regarding our Security Measures or as otherwise required by Data Protection Laws.
b. Within a reasonable time after we have received and reviewed the Request, you and we will discuss and work in good faith towards agreeing on a plan to determine the details of how the Request can be addressed. You and we agree to use the least intrusive means for The Conover Company to address the Request, taking into account applicable legal requirements, information available to or that may be provided to you, the urgency of the matter and the need for The Conover Company to maintain uninterrupted business operations and the security of its facilities and protect itself and its customers from risk and to prevent disclosure of information that could jeopardize the confidentiality of The Conover Company or our users’ information.
You will pay our costs in considering and addressing any Request. Any information and documentation provided by The Conover Company or its auditors pursuant to this Section 5.9 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.
5.10. Questions. Upon your reasonable requests 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 Data Protection Laws). The information to be made available by The Conover Company under this Section 5.10 is limited to solely that information necessary, taking into account the nature of the Services and the information available to The Conover Company, to assist you in complying with your obligations under applicable Data Protection Laws 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 The Conover Company before we share any such information with you.
5.11. 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 Agreement 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 Agreement). Otherwise, we will delete Your Controlled Data in accordance with our data retention policy.
6. Data Transfers
6.1. Taking into account, in particular, the Security Measures and safeguards provided for in this DPA and the specific circumstances, you authorize The Conover Company to transfer Your Controlled Data away from the country in which such data was originally collected to other countries globally in which The Conover Company or any Sub-Processors operate, including in particular, to the US.
6.2. Unless such transfer is otherwise permitted under EU Data Protection Laws, transfers to a Sub-Processor in any country not recognized under EU Data Protection Laws as providing an adequate level of protection for Your Controlled Data shall proceed pursuant to (a) the processor to processor (module 3) standard contractual clauses for the transfer of personal data to third countries pursuant to the GDPR and approved by the European Commission decision 2021/914, dated 4 June 2021; or (b) such other standard contractual clauses for the transfer of personal data to third countries that are recognized under the applicable EU Data Protection Laws in the EEA, UK or Switzerland. In order to facilitate an efficient and coordinated service, all communication with The Conover Company and any Sub-Processor (including The Conover Company, Inc.) in connection with such standard contractual clauses will, to the extent possible, be coordinated and directed through The Conover Company Ireland Limited.
6.3. Any European Commission standard contractual clauses between you and The Conover Company, Inc. in respect of Your Controlled Data that were put in place pursuant to a previous version of this DPA are terminated with effect from 27 September 2021. You agree that Your Controlled Data transferred pursuant to the terminated standard contractual clauses shall not be destroyed or returned due to such termination, but instead, shall continue to be processed in accordance with and subject to the terms of this DPA and as if transferred pursuant to the standard contractual clauses identified in Section 6.2.
The liability of each party under this DPA is subject to the exclusions and limitations of liability set out in the Agreement. You agree that any regulatory penalties or claims by data subjects or others incurred by The Conover Company in relation to Your Controlled Data that arise as a result of, or in connection with, your failure to comply with your obligations under the Agreement, this DPA or Data Protection Laws shall reduce as applicable, The Conover Company’s maximum aggregate liability to you in the same amount as such regulatory penalties, claims and/or liability incurred by us as a result.
In the event of a conflict between this DPA and the rest of the Agreement, this DPA will control.
You are responsible for any costs and expenses arising from The Conover Company’s compliance with your instructions or requests pursuant to the Agreement (including this DPA) which fall outside the standard functionality made available generally through the Services.
10. Modifications to this DPA
We may modify this DPA from time to time, and will post the most current version on our site. If a modification meaningfully reduces your rights, we may notify you in accordance with the procedures set forth in our Terms of Service. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified DPA. If you disagree with our changes, then you must stop using the applicable Services and cancel the applicable Paid Services.
Effective: January 9, 2023