October 3 2022
For purposes of this DPA, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this DPA have the meanings given in the Agreement.
(a) Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
(b) Agreement means the applicable Terms of Service or other applicable agreement between Customer and Qualified.
(c) “Anonymised Data” means any Personal Data, which has been anonymised such that the data subject to whom it relates cannot be identified, directly or indirectly, by Qualified or any other party reasonably likely to receive or access that anonymised Personal Data.
(d) Data Protection Laws means any law governing the privacy or security of Personal Data Processed by Qualified in order to render Services to Customer.
(e) CCPA means the California Consumer Privacy Act of 2018 and any binding regulations promulgated thereunder.
(f) EEA means the European Economic Area.
(g) European Data Protection Laws means the GDPR and other data protection laws of the European Union, its Member States, Switzerland, Iceland, Liechtenstein, Norway and the United Kingdom, in each case, to the extent applicable to the Processing of Personal Data under the Agreement.
(h) GDPR means, as and where applicable to Processing concerned: (i) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”); and/or (ii) the EU GDPR as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (as amended, including by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019) (“UK GDPR”), including, in each case (i) and (ii) any applicable national implementing or supplementary legislation (e.g., the UK Data Protection Act 2018), and any successor, amendment or re-enactment, to or of the foregoing. References to “Articles” and “Chapters” of, and other relevant defined terms in, the GDPR shall be construed accordingly.
(i) Personal Data means Customer Content that constitutes “personal data,” “personal information,” or similar information governed by Data Protection Laws that is Processed by Qualified on behalf of Customer in order to render Services to Customer, except that Personal Data does not include such information pertaining to Customer’s business contacts who are Customer personnel where Qualified acts as a controller of such information.
(j) Processing means any operation or set of operations which is performed on Personal Data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
(k) Restricted Transfer means the disclosure, grant of access or other transfer of Personal Data to any person located in: (i) in the context of the EEA, any country or territory outside the EEA which does not benefit from an adequacy decision from the European Commission (an “EU Restricted Transfer”); and (ii) in the context of the UK, any country or territory outside the UK, which does not benefit from an adequacy decision from the UK Government (a “UK Restricted Transfer”), which would be prohibited without a legal basis under Chapter V of the GDPR.
(l) Security Incident means any “security breach,” “breach” or similar term as defined under any Data Protection Law that requires notification to affected persons or regulators of such “security breach, “breach” or similar term.
(m) Security Measures has the meaning given in Section 4(a) (Qualified’s Security Measures).
(n) Sensitive Data means: (a) Personal Data as defined or identified as sensitive, a special category, high risk or similar term under Data Protection Laws, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”), the Gramm-Leach-Bliley Act, Fair Credit Reporting Act or GDPR; (b) Personal Data as defined under US breach notification laws, including without limitation Social Security numbers, governmental identification information, health or medical information, biometric information, and information about criminal history; and (c) Personal Data that includes any medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional, health insurance information, biometric information; passwords to any online accounts, credentials to any financial accounts, tax return data, payment card information personal data of any individual who is under 16 years of age.
(o) Standard Contractual Clauses or SCCs means the standard contractual clauses approved by the European Commission pursuant to Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as set out in Attachment 1 to Annex 1 (European Annex).
(p) Subprocessors means third parties that Qualified engages to Process Personal Data in relation to the Services.
(q) Supervisory Authority: (i) in the context of the EEA and the EU GDPR, shall have the meaning given to that term in the EU GDPR; and (ii) in the context of the UK and the UK GDPR, means the UK Information Commissioner’s Office.
(r) Third Party Subprocessors has the meaning given in Section 5 (Subprocessors) of Annex 1.
(s) UK Addendum means the International Data Transfer Addendum to the Standard Contractual Clauses, version B1.0, issued by the UK Information Commissioner’s Office under S119A(1) Data Protection Act 2018 and in force as of 21 March 2022, as revised by the UK Information Commissioner’s Office from time to time and as set out in Attachment 2 to Annex 1 (European Annex).
(t) The terms controller, data subject, and processor as used in this DPA have the meanings given in the GDPR.
(a) This DPA will remain in effect so long as Qualified Processes Personal Data, notwithstanding the expiration or termination of the Agreement.
(b) Annex 1 (European Annex) to this DPA applies only if, and to the extent, European Data Protection Laws apply to Qualified’s Processing of Personal Data with respect to which Customer is a controller (making Qualified a processor) or processor (making Qualified a subprocessor). Annex 2 (California Annex) to this DPA applies only if, and to the extent, the CCPA applies to Qualified’s Processing of Personal Data with respect to which Customer is a Business (as defined in CCPA).
Qualified will Process Personal Data only in accordance with Customer’s instructions. By entering into this DPA, Customer instructs Qualified to Process Personal Data to provide the Services and to perform its other obligations and exercise its rights under the Agreement, including without limitation to (i) carry out the Services or the business of which the Services is a part; (ii) carry out any benefits, rights and obligations relating to the Services; (iii) maintain records relating to the Service; or (iv) comply with any legal obligations relating to the Services.
(a) Qualified Security Measures. Qualified will implement administrative, technical and physical controls designed to protect Personal Data against unauthorized access, use, acquisition, loss or disclosure (the “Security Measures”) as described in Annex 3 (Security Measures). Qualified agrees that it will maintain a SOC2/Type II certification with respect to its Security Measures. Qualified may update its Security Measures from time to time, provided the updated measures do not decrease the overall protection of Personal Data.
(b) Security Incidents. Qualified will notify Customer of any Security Incident affecting Personal Data stored by Qualified, to the extent required by Data Protection Laws applicable to Qualified. Such notifications will describe available details of the Security Incident, including steps taken to mitigate the potential risks and steps Qualified recommends Customer take to address the Security Incident. Qualified’s notification of or response to a Security Incident will not be construed as Qualified’s acknowledgement of any fault or liability with respect to the Security Incident. Qualified shall not be liable or responsible for any Security Incident to the extent it arises out of any act, error or omission of Customer.
(c) Customer’s Security Responsibilities and Assessment
(a) Qualified’s Data Subject Request Assistance. Qualified will (taking into account the nature of the Processing of Personal Data) provide Customer with the assistance reasonably necessary for Customer to perform its obligations under Data Protection Laws applicable to Customer to fulfill requests by data subjects to exercise their rights under such Data Protection Laws (“Data Subject Requests”) with respect to Personal Data in Qualified’s possession or control. Customer shall compensate Qualified for any such assistance at Qualified’s then-current professional services rates, which shall be made available to Customer upon request.
(b) Customer’s Responsibility for Requests. If Qualified receives a Data Subject Request, Qualified will advise the data subject to submit the request to Customer and Customer will be responsible for responding to any such request.
(a) No Sensitive Data. Customer represents and warrants to Qualified that Customer Content does not and will not contain any Sensitive Data, and that Customer shall not provide or make any Sensitive Data available to Qualified for Processing or otherwise.
(b) Anonymized and Aggregated Data. In order to develop, support and improve Qualified’s Services, Customer instructs Qualified to create and derive from data related to Customer’s use of the Services or any Processing related to the Services, Anonymized Data and/or aggregated data that does not identify Customer or any natural person.
(d) Children’s’ Personal Data. Customer agrees that its Customer Properties are not targeted to, nor does Customer knowingly collect Personal Data from, children under the age of sixteen (16), unless Customer first complies with Data Protection Laws.
(a) Conflict. Except as expressly modified by the DPA, the terms of the Agreement remain in full force and effect. To the extent there is any conflict or inconsistency between this DPA and the other terms of the Agreement, this DPA will govern.
(b) Return and Deletion. Qualified shall, at the expiry or termination of the Contract(s), at Customer’s option, delete or return all Personal Data to Customer, except where Qualified is required to retain copies under applicable law, in which case Qualified will isolate and protect that Personal Data from any further processing except to the extent required by applicable law.
(c) General. Notwithstanding anything in the Agreement or any order form entered in connection therewith to the contrary, the parties acknowledge and agree that Qualified’s access to Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement. Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Qualified to Customer under this DPA may be given (a) in accordance with any notice clause of the Agreement; (b) to Qualified’s primary points of contact with Customer; or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.
(a) Subject Matter and Details of Processing. The parties acknowledge and agree that (i) the subject matter of the Processing under the Agreement is Qualified’s provision of the Service; (ii) the duration of the Processing is from Qualified’s receipt of Personal Data until deletion of all Personal Data by Qualified in accordance with the Agreement; (iii) the nature and purpose of the Processing is to provide the Service; (iv) the data subjects to whom the Personal Data pertains are individuals about whom Qualified Processes in connection with the Services; and (v) the categories of personal data are provided by Customer or its users in connection with the Services.
(b) Roles and Regulatory Compliance; Authorization. The parties acknowledge and agree that (a) Qualified is a Processor of that Personal Data under European Data Protection Laws; (b) Customer is a controller (or a processor acting on the instructions of a controller) of that Personal Data under European Data Protection Laws; and (c) each party will comply with the obligations applicable to it in such role under the European Data Protection Laws with respect to the Processing of that Personal Data. If Customer is a processor, Customer represents and warrants to Qualified that Customer’s instructions and actions with respect to Personal Data, including its appointment of Qualified as another processor, have been authorized by the relevant controller.
(c) Qualified’s Compliance with Instructions. Qualified will only Process Personal Data in accordance with Customer’s instructions stated in this DPA unless European Data Protection Laws require otherwise, in which case Qualified will notify Customer (unless that law prohibits Qualified from doing so on important grounds of public interest).
(d) Data Deletion. Customer instructs Qualified to delete all Personal Data from Qualified’s systems upon termination of Customer’s access to the Service, unless European Data Protection Laws require otherwise.
(a) Qualified Security Measures, Controls and Assistance
(b) Reviews and Audits of Compliance
Qualified will (taking into account the nature of the Processing and the information available to Qualified) reasonably assist Customer in complying with its obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Qualified’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement, including this DPA.
(a) Data Processing Facilities. Qualified may, subject to Section 4(b) (Transfers out of the EEA) and Section 4(c) (Transfers out of the UK), store and Process Personal Data in the United States or anywhere Qualified or its Subprocessors maintain facilities. Accordingly, the parties acknowledge that Customer’s transmission of Personal Data to Qualified hereunder may involve a Restricted Transfer. The relevant Module(s) of the Standard Contractual Clauses that may be entered into under Section 4(b) (Transfers out of the EEA) and/or the UK Addendum may be entered into under Section 4(c) (Transfers out of the UK) of this Annex 1 (European Annex) shall apply and have effect to the extent permitted and required under the EU GDPR and/or UK GDPR (if and as applicable) to establish a valid basis under Chapter V of the EU GDPR and/or UK GDPR in respect of the transfer from Customer to Qualified of Personal Data – and will not apply to the extent an alternative recognized compliance standard applies to the Restricted Transfer (e.g., binding corporate rules).
(b) Transfers out of the EEA. To the extent that any Processing of Personal Data under this DPA involves an EU Restricted Transfer from Customer to Qualified, the parties shall comply with their respective obligations set out in the Standard Contractual Clauses, which are hereby deemed entered into by the parties and incorporated by reference into this DPA. (c) Transfers out of the UK. To the extent that any Processing of Personal Data under this DPA involves a UK Restricted Transfer from Customer to Qualified, the parties shall comply with their respective obligations set out in the UK Addendum, which are hereby deemed entered into by the parties and incorporated into this DPA. The clarifications made to the Standard Contractual Clauses in this DPA shall apply to the UK Addendum.
(d) Application of updated or alternative transfer solution(s). Qualified may from time to time, vary this DPA on notice and replace the relevant set(s) Standard Contractual Clauses with:
that enables the lawful transfer of Personal Data to Qualified under this DPA in compliance with Chapter V of the GDPR.
(a) Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Qualified’s Affiliates as Subprocessors and generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”).
(b) Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at: www.qualifed.com/legal/subprocessors (as may be updated by Qualified from time to time) or such other website address as Qualified may provide to customer from time to time (the “Subprocessor Site”).
(c) Requirements for Subprocessor Engagement. When engaging any Subprocessor, Qualified will enter into a written contract with such Subprocessor containing data protection obligations no less protective than those in this DPA with respect to Personal Data to the extent applicable to the nature of the services provided by such Subprocessor. Qualified shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
(d) Opportunity to Object to Subprocessor Changes. When Qualified engages any new Third Party after the effective date of the Agreement, Qualified will notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by updating Subprocessor Site or by other written means. If Customer objects to such engagement in a written notice to Qualified within 15 days after being informed of the engagement on reasonable grounds relating to the protection of Personal Data, Customer and Qualified will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement and cancel the Service by providing written notice to Qualified.
The total combined liability of Qualified, whether in contract, tort or any other theory of liability, under or in connection with Agreement, this DPA and the Standard Contractual Clauses as described in Annex 1, Section 4 (Transfers out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement; provided, however, that this section will not affect any party’s liability to data subjects under the third party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such rights is prohibited by European Data Protection Laws, where applicable.
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Name: Customer as identified in the Agreement (the “data exporter”)
Address: As identified in the Agreement
Contact person’s name, position and contact details: As identified in the Agreement
Activities relevant to the data transferred under these Clauses: Activities relating to conversational sales and marketing platform that helps conversations with customers and prospective customers in real time using live chat, voice-calls, and chatbots as serviced by Qualified
Signature and date: these Clauses are entered into by Customer under and subject to Section 4(a) and 4(b) of Annex 1 (European Annex) to the DPA with effect from the effective date of that DPA.
Role (controller/processor): Controller or Processor
Name: Qualified.com, Inc.
Address: 140 New Montgomery, 2100A, San Francisco, CA 94105
Contact person’s name, position and contact details: Sean Whiteley, Co-Founder and President, email@example.com
Activities relevant to the data transferred under these Clauses: Subject to our contractual obligations and depending on the particular Services a Customer uses, the activities relevant to the data transferred under these Clauses are:
Signature and date: these Clauses are entered into by Qualified under and subject to Section 4(a) and 4(b) of Annex 1 (European Annex) to the DPA with effect from the effective date of that DPA.
Role (controller/processor): Processor or Subprocessor
Categories of data subjects whose personal data is transferred
The data subjects to whom the Personal Data pertains are individuals about whom Processor Processes in connection with the Services including customers and prospective customers of Qualified’s customers
Categories of personal data transferred
The categories of personal data are data provided by Customer or its users in connection with the Services including e-mail address and IP address.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures
Categories of sensitive data
Additional safeguards for sensitive data
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis)
Nature of the processing
As set forth in the Agreement
Purpose(s) of the data transfer and further processing
To facilitate Qualified’s provision of the Services pursuant to the Agreement, including creating Anonymized Data from the Personal Data received from the Customer.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The personal data will be retained for the time period needed to accomplish the purposes of processing, unless otherwise required by applicable law
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Transfers to sub-processors are for the same purposes as transfers to the processor
Identify the competent supervisory authority/ies in accordance with Clause 13:
The supervisory authority of the EU Member State in which the data exporter is established. See https://edpb.europa.eu/about-edpb/about-edpb/members_en
Table 1: The Parties: as stipulated in Annex 1 to the Standard Contractual Clauses.
Table 2: Selected SCCs, Modules and Selected Clauses: as stipulated in Attachment 1 to Annex 1 to the DPA.
Table 3: Appendix Information: means the information which must be provided for the selected modules as set out in the Appendix of the Standard Contractual Clauses (other than the Parties), and which for this Attachment 2 is set out in Attachment 1 to Annex 1 to the DPA.
Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses.