ATA PROCESSING ADDENDUM
In the course of providing the Services to Customer pursuant to the Agreement, Thunderhead may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
HOW THIS DPA APPLIES
If the Customer entity signing this DPA is a party to the Agreement, this DPA is an addendum to and forms part of the Agreement. In such case, the Thunderhead entity that is party to the Agreement is party to this DPA.
If the Customer entity signing this DPA has executed an order form with Thunderhead or its Affiliate pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that order form and applicable renewal order forms, and the Thunderhead entity that is party to such order form is party to this DPA.
If the Customer entity signing this DPA is neither a party to an order form nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity who is a party to the Agreement executes this DPA.
If the Customer entity signing the DPA is not a party to an order form nor an Agreement directly with Thunderhead, but is instead a customer indirectly via an authorized reseller of Thunderhead services, this DPA is not valid and is not legally binding. Such entity should contact the authorized reseller to discuss whether any amendment to its agreement with that reseller may be required.
This DPA shall not replace any comparable or additional rights relating to Processing of Customer Data contained in Customer’s Agreement (including any existing data processing addendum to the Agreement), unless otherwise agreed in writing between the parties.
DATA PROCESSING TERMS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Customer Data” has the meaning as defined in the Agreement as “Customer Data” or “Data.”
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Order Form” means the ordering document or online order entered into between Customer and SFDC or its authorized affiliates or outbound resellers, to effect Customer’s purchase of products and services (including the Services).
“Personal Data” means any information relating to an identified or identifiable natural person where such data is Customer Data. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic 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.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Security and Privacy Documentation” means the Data Protection and Security Policy applicable to the specific Services purchased by Customer, as updated from time to time, and accessible via Thunderhead’s website at https://testing.thunderhead.com/data-protection-and-security-policy/, or as otherwise made reasonably available by Thunderhead.
“SFDC” salesforce.com, inc., a Delaware corporation with its principal place of business at The Landmark @ 1 Market, Suite 300, San Francisco, California 94105.
“Sub-processor” means any Processor engaged by Thunderhead or a member of the Thunderhead Group.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
“Thunderhead” means the Thunderhead entity which is a party to this DPA, as specified in the section “HOW THIS DPA APPLIES” above, being Thunderhead One Inc., a company incorporated in Virginia or Thunderhead (One) Ltd., a company registered in England and Wales, as applicable.
“Thunderhead Group” means Thunderhead and its Affiliates engaged in the Processing of Personal Data.
PROCESSING OF PERSONAL DATA
Roles of the Pa The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Thunderhead is the Processor and that Thunderhead or members of the Thunderhead Group will engage Sub -processors pursuant to the requirements set forth in Section 5(Sub-processors) below.
Customer Responsibilities. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the collection, accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer shall ensure that it informs any Data Subjects whose Personal Data is disclosed to Thunderhead and Processed pursuant to the Agreement and this DPA, that Customer may use and disclose their Personal Data to Thunderhead in such a manner, and that the relevant Data Subjects have, where necessary, consented to such Processing and disclosure. Customer shall be solely responsible for ensuring the Personal Data processed by Thunderhead in accordance with the Agreement and this DPA is Processed on lawful grounds. Customer shall be solely responsible for any automated decision making it makes through use of the Services and shall ensure it implements suitable measures to safeguard the Data Subjects’ fundamental rights and freedoms.
Thunderhead’s Processing of Personal Data. Thunderhead shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable order form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
Details of the Processing. The subject-matter of Processing of Personal Data by Thunderhead is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
RIGHTS OF DATA SUBJECTS
Thunderhead shall, to the extent legally permitted and where the Data Subject has identified Customer as the relevant Data Controller, promptly notify Customer if Thunderhead receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure, data portability, objection to the Processing, or its right not to be subject to automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Thunderhead shall assist Customer by appropriate technical and organizational measures, insofar as this is reasonably possible and technically feasible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Thunderhead’s provision of such assistance.
Thunderhead shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Thunderhead shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
Thunderhead shall take commercially reasonable steps to ensure the reliability of any Thunderhead personnel engaged in the Processing of Personal Data.
Limitation of Access. Thunderhead shall ensure that Thunderhead’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
Data Protection Officer. Members of the Thunderhead Group have appointed a data protection officer. The appointed person may be reached at firstname.lastname@example.org.
Appointment of Sub-processors. Customer acknowledges and agrees that: (a) Thunderhead’s Affiliates may be retained as Sub-processors; and (b) Thunderhead and Thunderhead’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Thunderhead or a Thunderhead Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
List of Current Sub-processors and Notification of New Sub-processors. Customer may find a current list of Sub-processors for the Services in the Security and Privacy Documentation (“Sub- processor List”). The Sub-processor List shall include the identities of those Sub-processors and their country of location. Thunderhead shall notify Customer of new Sub-processors for each applicable Service by updating the Sub-processor List and notifying Customer via email (or, where Customer has entered into an Order Form, via SFDC), before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the applicable Services.
Objection Right for New Sub-processors. Customer may object to Thunderhead’s use of a new Sub-processor by notifying Thunderhead promptly in writing within ten (10) business days after receipt of Thunderhead’s notice in accordance with the mechanism set out in Section 2. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, Thunderhead will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening Customer. If Thunderhead is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable order form(s) and/or Agreement with respect only to those Services which cannot be provided by Thunderhead without the use of the objected-to new Sub-processor, by providing written notice to Thunderhead.
Thunderhead shall be liable for the acts and omissions of its Sub-processors to the same extent Thunderhead would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
SECURITY AND AUDITS
Controls for the Protection of Customer Data. Thunderhead shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the Security and Privacy Documentation. Thunderhead regularly monitors compliance with these measures. Thunderhead will not materially decrease the overall security of the Services during a subscription term.
Where required pursuant to applicable Data Protection Laws and Regulations and on reasonable notice from Customer, Thunderhead shall make available to Customer all information necessary to demonstrate compliance with the obligations laid down in the relevant Data Protection Laws and Regulations and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer during normal working hours. To the extent permissible under Data Protection Laws and Regulations, Customer shall pay Thunderhead for any reasonable costs incurred by Thunderhead in complying with any audit requested and shall take all necessary steps to minimize the disruption to Thunderhead’s business.
CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
Thunderhead maintains security incident management policies and procedures specified in the Security and Privacy Documentation and shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to any Personal Data comprised within the Customer Data, which is transmitted, stored or otherwise Processed by Thunderhead or its Sub-processors of which Thunderhead becomes aware (a “Customer Data Incident”). Thunderhead shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as Thunderhead deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within Thunderhead’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Users or any Third Party Application (including the SFDC services).
RETURN AND DELETION OF CUSTOMER DATA
Thunderhead shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in the Security and Privacy Documentation.
LIMITATION OF LIABILITY
Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the limitations of liability contained within the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.
For the avoidance of doubt, Thunderhead and its Affiliates’ total liability for all claims from Customer and all of its Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and the DPAs established under this Agreement, including by Customer and all Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Affiliate.
EUROPEAN SPECIFIC PROVISIONS
International Transfers. Subject to Section 11, where the Customer entity and the Thunderhead entity signing this DPA are based inside the EEA, Thunderhead shall not transfer Personal Data to any country outside of the EEA without prior written consent from Customer, except for transfers to and from: (i) any country which has a valid adequacy decision from the European Commission; or (ii) any organisation which ensures an adequate level of protection in accordance with the applicable Data Protection Laws and Regulations.
Data Protection Impact Assessments. Upon Customer’s request, Thunderhead shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Thunderhead. Thunderhead shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 2 of this DPA, to the extent required under the GDPR.
SFDC SERVICES SPECIFIC PROVISIONS
Where the Customer has entered into an Order Form, Customer acknowledges and accepts that Personal Data may be shared with SFDC and its Affiliates in relation to the provision of the Services and the SFDC service branded as ‘Marketing Cloud’ and all other relevant SFDC services which the Customer has purchased in the relevant Order Form. The Processing of any Personal Data by SFDC or its Affiliates (including the right to Process such Personal Data) shall be governed by the agreement entered into between Customer and SFDC or its Affiliates. Thunderhead shall not be responsible for any loss, corruption, unauthorized use or disclosure of Personal Data to the extent caused by SFDC or its Affiliates.
The parties’ authorized signatories have duly executed this Agreement.
SCHEDULE 1 – DETAILS OF THE PROCESSING
Nature and Purpose of Processing
Thunderhead will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Security and Privacy Documentation, and as further instructed by Customer in its use of the Services. This shall include automated processing of Personal Data and profiling of Data Subjects to evaluate and analyze certain personal aspects relating to the Data Subject, in particular to analyze or predict aspects concerning that Data Subject’s personal preference, interests, behavior and location.
Duration of Processing
Subject to the Security and Privacy Documentation, Thunderhead will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Categories of Data Subjects
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Prospects, customers, business partners and vendors of Customer (who are natural persons)
Employees or contact persons of Customer’s prospects, customers, business partners and vendors
Employees, agents, advisors, freelancers of Customer (who are natural persons)
Customer’s Users authorized by Customer to use the Services
Type of Personal Data
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
First and last name
Contact information (company, email, phone, physical business address)
Behavioral and profile data