1. For the purposes of this Schedule, the following terms shall have the following meanings:
(a) controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the GDPR;
(b) Customer means you, the purchaser of our service;
(c) Customer Personal Data means any personal data of individuals based in the UK or the EEA which HighLevel processes in connection with this agreement, in the capacity of a processor on behalf of the Customer, including all data collected, stored, processed, contacted and otherwise used by you using our service or platform;
(d) GDPR means the General Data Protection Regulation ((EU) 2016/679), and the retained UK version of the same; and
(e) Standard Contractual Clauses means the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU, a completed copy of which is attached at Annex B.
2. Both parties will comply with all applicable requirements of the GDPR. This schedule is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the GDPR.
3. The parties have determined that for the purposes of the GDPR HighLevel shall process the Customer Personal Data as processor on behalf of the Customer.
4. Without prejudice to paragraph 2 above, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Customer Personal Data to HighLevel, and the lawful collection of the same by the Customer using the HighLevel services or platform for the duration and purposes of this agreement, and shall indemnify HighLevel against all loss and damage (including fines) arising from a failure to do so.
5. In relation to the Customer Personal Data, Annex A sets out the scope, nature and purpose of processing by HighLevel, the duration of the processing and the types of personal data and categories of data subject.
6. Without prejudice to paragraph 2 above, HighLevel shall, in relation to Customer Personal Data:
(a) process that Customer Personal Data only on the documented instructions of the Customer, unless HighLevel is required by any applicable laws to otherwise process that Customer Personal Data (Purpose). HighLevel shall inform the Customer if, in the opinion of HighLevel, the instructions of the Customer breach the GDPR;
(b) implement sufficient technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by HighLevel to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to HighLevel), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under the GDPR with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless HighLevel is required by any applicable law to continue to process that Customer Personal Data. For the purposes of this paragraph, Customer Personal Data shall be considered deleted where it is put beyond further use by HighLevel; and
(g) maintain records to demonstrate its compliance with this paragraph.
7. The Customer provides its prior, general authorisation for HighLevel to:
(a) appoint processors to process the Customer Personal Data, provided that HighLevel:
(i) shall ensure that the terms on which it appoints such processors comply with the GDPR, and are consistent with the obligations imposed on HighLevel in this paragraph; and
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of HighLevel.
(b) transfer Customer Personal Data outside of the UK and/or the EEA as required for the Purpose, provided that HighLevel shall ensure that all such transfers are effected in accordance with the GDPR. For these purposes, the Customer shall promptly comply with any reasonable request of HighLevel, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time.
8. As HighLevel is based outside the UK and the EEA, promptly after signature of this Agreement, the parties shall execute and be bound by the Standard Contractual Clauses in order to comply with the GDPR (where the Customer is the entity exporting Personal Data to HighLevel outside the UK and the EEA), the parties will complete all relevant details in, and execute, the Standard Contractual Clauses, and take all other actions required to legitimise the transfer.
9. Either party may, at any time on not less than 30 days' notice, revise this schedule by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
ANNEX A
Subject matter of processing: HighLevel will provide the Services to the Agency, the Customer. The Agency will use the Services to collect and process personal data of their customers and potential customers for the purposes of managing and carrying out marketing activities which may be targeted to their customers and potential customers.
Duration of Processing: The duration of the period in which the Agency accesses and uses the HighLevel platform.
Nature of Processing: Collecting, storing, recording, contacting and managing personal data, in particular for the purpose of running marketing campaigns, providing marketing services, and managing marketing generally.
Business Purposes: For the Agency to make use of HighLevel’s marketing services platform to carry out the steps set out above in the Nature of Processing section.
Personal Data Categories: The personal data inputted and collected as decided by the Customer, including name, age, date of birth, phone number, email address, social media profiles.
Data Subject Types: Customers and potential customers of clients of the Agency.
ANNEX B
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
(the data exporter)
Name of the data exporting organisation:
Appalachian Trends
Address
665 Cherry Tree Ln Suite 2
State/Province
Pa
Town/City
Uniontown
Country
United States
tel:
4122073306
e-mail:
mail@appalachiantrends.com
(the data importer)
Name of the data importing organisation:
HighLevel, LLC
address:
400 N. Saint Paul St.
Suite 920
Dallas, Texas 75202, USA
tel:
+1 (888) 732-4197
e-mail:
support@gohighlevel.com
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 ANNEX A.
1. Definitions
For the purposes of the Clauses:
(a) 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 (1);
(b) the data exporter means the controller who transfers the personal data;
(c) 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 and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) the sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 its instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 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 Member State in which the data exporter is established;
(f) 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.
2. Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in ANNEX A which forms an integral part of the Clauses.
3. Third-party beneficiary clause
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.
4. Obligations of the data exporter
The data exporter agrees and warrants:
(a) 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 Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) 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;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in ANNEX B to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect 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, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) 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 within the meaning of Directive 95/46/EC;
(g) to make available to the data subjects upon request a copy of the Clauses, with the exception of ANNEX B and a summary description of the security measures, as well as a copy of any contract for sub-processing 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;
(h) that it will ensure compliance with clause 4(a) to clause 4(i).
5. Obligations of the data importer
The data importer agrees and warrants:
(a) 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;
(b) 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;
(c) that it has implemented the technical and organisational security measures specified in ANNEX B before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) 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;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) 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;
(f) 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;
(g) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(h) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
6. Liability
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
7. Mediation and jurisdiction
7.1 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:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
7.2 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.
8. Cooperation with supervisory authorities
8.1 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.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5(b).
9. Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely United States.
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 Clauses.
11. Sub-processing
11.1 The data importer shall not 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. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor's obligations under such agreement.
11.2 The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely United States
11.3 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
12. Obligation after the termination of personal data processing services
12.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, 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.
12.2 The data importer and the sub-processor 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.
On behalf of the data exporter:
Name (written out in full): Zack Breakiron
Appalachian Trends
Position:
CEO
Address:
665 Cherry Tree Ln Suite 2 , Uniontown, Pa, 15401, United States
Signature
Date
Date
Oct 03, 2021
ANNEX A to the Standard Contractual Clauses
This Annex forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this ANNEX A.