Data Processing Agreement

Client Data Processing Agreement

This Data Processing Agreement (“DPA”) is an addendum to the Terms & Conditions (“Agreement”) between AssociationVoting, L.L.C. (“AssociationVoting”) and the Client. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Client enters into this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the name and on behalf of its Authorized Affiliates (defined below).

The parties agree as follows:

1. Definitions

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.

“Authorized Affiliate” means any of Client Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.

“Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.

“Controller” means an entity that determines the purposes and means of the processing of Personal Data.

“Client Data” means any data that AssociationVoting and/or its Affiliates processes on behalf of Client in the course of providing the Services under the Agreement.

“Data Protection Laws” means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.

“EU Data Protection Law” means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after May 25, 2018, Regulation 2016/679 of the European Parliament and of the Council 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) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).

“Personal Data” means any Client Data relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Law.  Personal data includes any voting member data provided by Client.

“Processor” means an entity that processes Personal Data on behalf of the Controller.

“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly.

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.

“Services” means any product or service provided by AssociationVoting to Client pursuant to and as more particularly described in the Agreement.

“Sub-processor” means any Processor engaged by AssociationVoting or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any AssociationVoting Affiliate.

2. Scope and Applicability of this DPA

2.1 This DPA applies where and only to the extent that AssociationVoting processes Personal Data on behalf of the Client in the course of providing the Services and such Personal Data is subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.

2.2 Role of the Parties. As between AssociationVoting and Client, Client is the Controller of Personal Data and AssociationVoting shall process Personal Data only as a Processor on behalf of Client. Nothing in the Agreement or this DPA shall prevent AssociationVoting from using or sharing any data that AssociationVoting would otherwise collect and process independently of Client’s use of the Services.

2.3 Client Obligations. Client agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to AssociationVoting; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for AssociationVoting to process Personal Data and provide the Services pursuant to the Agreement and this DPA.  Client agrees that (i) it shall be responsible for ensuring the accuracy of its physical and billing addresses and will notify AssociationVoting in the event its physical and/or billing address is or becomes located within the European Union or the European Economic Area and/or any voting member’s address is or becomes located in within the European Union or the European Economic Area.

2.4 AssociationVoting Processing of Personal Data. As a Processor, AssociationVoting shall process Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; and (iii) to comply with other reasonable instructions provided by Client to the extent they are consistent with the terms of this Agreement and only in accordance with Client’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Client’s complete and final instructions to AssociationVoting in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Client and AssociationVoting.

2.5 Nature of the Data. AssociationVoting handles Client Data provided by Client. Such Client Data may contain special categories of data depending on how the Services are used by Client. Categories included but not limited are listed below.

  • Voting member contact information, including name, company names, passcode, member numbers, mailing and e-mail addresses. As part of Client’s role as voting manager, Client selects the categories of voting member contact information to share with AssociationVoting. Client should not and hereby agrees not to share any financial, medical, demographic, or other sensitive information as voting member contact information.
  • Email success tracking information, including information on whether an email recipient clicked a link.

The Client Data may be subject to the following process activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to Client; (ii) to provide Client and technical support to Client; and (iii) disclosures as required by law or otherwise set forth in the Agreement.  The following is a non-exhaustive list of processing activities; items not included on this list, but still required to accomplish the specific services, are not intentionally excluded, and should be considered included here as well.

  • Sending e-mail election notifications and reminders to voting members.
  • Providing ballot assistance to voting members
  • Mailing letters and postcards to voting members
  • Maintaining an opt-out list
  • Compliance with obligations under applicable laws, rules, or regulations
  • Providing the Client with analysis and statistical benchmarking based on the Client Data

2.6 AssociationVoting Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Client acknowledges that AssociationVoting shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing.

3. Subprocessing

3.1 Sub-processors. Client agrees that AssociationVoting may engage Sub-processors to process Personal Data on Client’s behalf. The Sub-processors listing currently engaged by AssociationVoting and authorized by Client is available upon request.

4. Security

4.1 Security Measures. AssociationVoting shall implement and maintain appropriate technical and organizational security measures to protect Personal Data from Security Incidents and to preserve the security and confidentiality of the Personal Data.

4.2 Confidentiality of Processing. AssociationVoting shall ensure that any person who is authorized by AssociationVoting to process Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

4.3 Security Incident Response. Upon becoming aware of a Security Incident, AssociationVoting shall notify Client without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Client.

4.4 Updates to Security Measures. Client acknowledges that the Security Measures are subject to technical progress and development and that AssociationVoting may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Client.

6. Processing Locations.

6.1 AssociationVoting stores and processes Client Data in data centers located inside the United States.

7. Return or Deletion of Data

7.1 Upon deactivation of the Services, all Personal Data shall be deleted, save that this requirement shall not apply to the extent AssociationVoting is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which such Personal Data AssociationVoting shall securely isolate and protect from any further processing, except to the extent required by applicable law.

8. Cooperation

8.1 To the extent that Client is unable to independently access the relevant Personal Data within the Services, AssociationVoting shall (at Client’s expense) taking into account the nature of the processing, provide reasonable cooperation to assist Client by appropriate technical and organizational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to AssociationVoting, AssociationVoting shall not respond to such communication directly without Client’s prior authorization, unless legally compelled to do so. If AssociationVoting is required to respond to such a request, AssociationVoting shall promptly notify Client and provide it with a copy of the request unless legally prohibited from doing so.

8.2 To the extent AssociationVoting is required under Data Protection Law, AssociationVoting shall (at Client’s expense) provide reasonably requested information regarding AssociationVoting’s processing of Personal Data under the Agreement to enable the Client to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.

9. Miscellaneous

9.1 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

9.2 This DPA is a part of and incorporated into the Agreement so references to “Agreement” in the Agreement shall include this DPA.

9.3 In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise.

9.4 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement.

AssociationVoting, LLC

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