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    Data Processing Schedule

    European Union General Data Protection Regulation (Regulation (EU) 2016/679) Data Processing Schedule Covering Article 28 GDPR (Processor Terms) and Incorporating Standard Contractual Clauses for Controller to Processor Transfers of Personal Data from the EEA to a Third Party

    This Data Processing Schedule ("Schedule") forms part of the terms and conditions available at https://www.vision6.com.au/terms-and-conditions/ ("Agreement") between Vision6 Pty Ltd ABN 23 099 766 499 ("Vision6") acting on its own behalf and as agent for each Affiliate and (ii) you, the person, entity or other organisation engaging Vision6 to perform its services ("Customer") acting on its own behalf and as agent for each Customer Affiliate. The Customer and Vision6 acknowledge that for the purposes of this Schedule, Vision6 acts as a processor and the Customer is the controller in relation to Customer Personal Data.

    The terms used in this Schedule shall have the meanings set forth in this Schedule. Capitalised terms not defined in this Schedule shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.

    In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as a Schedule to the Agreement. Except where the context requires otherwise, references in this Schedule to the Agreement are to the Agreement as amended by, and including, this Schedule.

    ANNEX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA

    This Annex 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.

    Subject matter and duration of the Processing of Customer Personal Data

    The subject matter and duration of the Processing of the Customer Personal Data are set out in the Agreement and this Schedule.

    The nature and purpose of the Processing of Customer Personal Data

    Vision6 will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Agreement and our Privacy Policy, and as further instructed by the Customer in its use of the services.

    The types of Customer Personal Data to be Processed

    The categories of Data Subject to whom the Customer Personal Data relates and the types of Customer Personal Data to be Processed

    1. Customer and Contacts: 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);
    2. Subscribers: 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 publicly 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).

    The obligations and rights of Customer and Customer Affiliates

    The obligations and rights of Customer and Customer Affiliates are set out in the Agreement and this Schedule.

    ANNEX 2: STANDARD CONTRACTUAL CLAUSES

    These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law (otherwise).

    Standard Contractual Clauses (processors)

    For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection Data Exporter and Data Importer HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

    Background

    The data exporter has entered into a data processing schedule (“DPS”) with the data importer. Pursuant to the terms of the DPS, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.

    Clause 1

    Definitions

    For the purposes of the Clauses:

    1. 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
    2. 'the data exporter' means the controller who transfers the personal data;
    3. 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses.
    4. 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
    5. 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the jurisdiction in which the data exporter is established;
    6. 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

    Clause 2

    Details of the transfer

    The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

    Clause 3

    Third-party beneficiary clause

    1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
    2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
    3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
    4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

    Clause 4

    Obligations of the data exporter

    The data exporter agrees and warrants:

    1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the jurisdiction where the data exporter is established) and does not violate the relevant provisions of that State;
    2. that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
    3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
    4. that it will ensure compliance with the security measures;
    5. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection.
    6. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
    7. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
    8. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
    9. that it will ensure compliance with Clause 4(a) to (h).

    Clause 5

    Obligations of the data importer

    The data importer agrees and warrants:

    1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
    2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
    3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
    4. that it will promptly notify the data exporter about:
      1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
      2. any accidental or unauthorised access, and
      3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
    5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
    6. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
    7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
    8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
    9. that the processing services by the subprocessor will be carried out in accordance with Clause 11.

    Clause 6

    Liability

    1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
    2. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

    Clause 7

    Mediation and jurisdiction

    1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
      1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
      2. to refer the dispute to the courts in the jurisdiction in which the data exporter is established.
    2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

    Clause 8

    Cooperation with supervisory authorities

    1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
    2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
    3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

    Clause 9

    Governing Law

    The Clauses shall be governed by the law of jurisdiction in which the data exporter is established.

    Clause 10

    Variation of the contract

    The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

    Clause 11

    Subprocessing

    1. The data importer may subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. The current list of subprocessors the data importer uses are listed on the data importer’s website. The data importer shall inform the data exporter of any intended changes concerning the addition or replacement of other processors by updating the list of subprocessors on its website. Where the data importer subcontracts its obligations under the Clauses, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
    2. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the jurisdiction in which the data exporter is established.

    Clause 12

    Obligation after the termination of personal data processing services

    1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data importer, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
    2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

    APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

    This Appendix forms part of the Clauses.

    The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

    Data subjects

    The personal data transferred concern the following categories of data subjects:

    Any individual accessing and/or using Vision6’s through the Customer's account ("Contacts"); and any individual: (i) whose email address is included in the Customer's distribution list (if any); (ii) whose information is stored on or collected via Vision6’s services, or (iii) to whom Contracts send emails or otherwise engage or communicate with via Vision6’s services (collectively, "Subscribers").

    Categories of data

    The personal data transferred concern the following categories of data:

    1. Customer and Contacts: 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);
    2. Subscribers: 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 publicly 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).

    Special categories of data (if appropriate)

    The personal data transferred concern the following special categories of data: not applicable.

    Processing operations

    The personal data transferred will be subject to the following basic processing activities: Vision6 provides an email service, automation and marketing platform and other related services. The personal data transferred to Vision6 will be subject to data processing activities associated with Vision6’s email service, automation and marketing platform.

    APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

    Please refer to our Security Policy for further information.

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