TERMS & CONDITIONS
FOR BOOSTR SERVICES
9/27/2021 - v1.0
These Terms and Conditions govern Customer’s subscription to access and use Boostr Services. Customer will be entitled to access and use the Boostr Services identified in an executed Order Form and payment to Boostr of the amounts indicated in the Order Form. Together, these Terms and Conditions and the Order Form will constitute the “Agreement”. The Order Form may contain terms different or in addition to those set forth in this Agreement, in which case the differing or additional terms in the Order Form will govern. Capitalized terms not otherwise defined in the Agreement shall have the meanings given in Section 13.
1. Use Rights
Subject to compliance with the Agreement and during the Subscription Term, Boostr hereby grants Customer the right to access and use:
- the Boostr Services for the number of Users set forth in the Order Form. Customer will use all reasonable efforts to ensure compliance with the terms and conditions of this Agreement by its Users, and will be responsible and liable for any non-compliance by Users.
- Boostr APIs as provided by Boostr to Customer only as directed by Boostr. Boostr may monitor usage of Boostr APIs to maintain and improve quality of the Boostr APIs and Booster Services, and verify compliance of Customer with Boostr’s directions relating to access and use of the Boostr APIs.
Boostr regularly deploys Updates to the Boostr Services and reserves the right to discontinue, add and/or substitute functionally equivalent features in the event of lack of use by customers, end-of-life or obscelescence, or changes to software requirements. Customer’s access and use rights set forth in Section 1 are applicable only to the production environment which is available generally to Boostr’s customers for the particular Boostr Service.
3. Acceptable Use Policy
Customer may not use the Boostr Services:
- in a manner prohibited by law, regulation, governmental order or decree;
- to violate the rights of the intellectual property or other personal proprietary rights of others;
- to try to gain unauthorized access to or disrupt the Boostr Services or any other service, device, data, account or network;
- to spam or distribute spam or malware; or
- in a way that could harm the Boostr Services or impair anyone else’s use of them.
Violation of any of the terms in this Section 3 may result in suspension of Customer’s access to and use the Boostr Services.
4. Fees Payments and Taxes
Customer will pay to Boostr the amounts set forth in the Order Form. Payments will be made as and when indicated in the Order Form. Customer will be responsible for payment of all sales, use, VAT or other taxes of a similar nature imposed upon the payment for Services, and Customer will provide such information as reasonable requested from time to time by Boostr in order to properly collect such tax payments as may be required under applicable law (e.g., location of Users).
5. Intellectual Property
Except as otherwise expressly stated herein, nothing in this Agreement creates any right of ownership in or license to Customer in or to the Boostr Services, and each party will continue to independently own its intellectual property and proprietary information. Any rights not expressly granted to Customer herein are reserved by Boostr. Customer agrees not to remove or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the Boostr Services. Customer agrees not to copy, modify, translate, disassemble, decompile, reverse engineer, create derivative works of, or make any other attempt by any means to discover or obtain the source code or other proprietary information included in the Boostr Services. As between Boostr and Customer, Customer owns all Customer Data. Customer represents and warrants it either owns or has sufficient rights to upload Customer Data to the Boostr Services. Customer has sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Customer grants Boostr a license during the Subscription Term to use Customer Data solely for the purposes of performing the Boostr Services, which may include anonymized Customer Data, aggregated across Boostr’s customer base so that Customer’s identity or data could not be segregated or identified, to produce and provide to Customer and other customers who provide such data useful industry statistics and metrics.
6. Limitation of Liability
EXCEPT IN CONNECTION WITH A PARTY’S LIABILITY THAT MAY ARISE UNDER SECTIONS 9 OR 10 OR FOR A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT: (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR IN CONNECTION WITH THIS AGREEMENT; AND (ii) EACH PARTY’S RESPECTIVE LIABILITY TO THE OTHER ARISING OUT OF, RELATING TO OR IN CONNECTION WITH AN ORDER FORM SHALL BE LIMITED IN THE AGGREGATE TO THE ANNUAL AMOUNT PAYABLE BY CUSTOMER IN THE ORDER FORM.
7. Representation and Warranties, Disclaimer
Boostr continuously represents and warrants that:
- it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;
- its performance will not violate any agreement or obligation between it and any third party;
- the Boostr Services will have substantially the functionality described in the applicable Service Description;
- the Boostr Services will not contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems; and
- while performing under this Agreement, Boostr will comply with applicable laws.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 7, THE BOOSTR SERVICES ARE PROVIDED TO CUSTOMER BY BOOSTR PURSUANT TO THIS AGREEMENT PROVIDED “AS IS”. BOOSTR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Technical Support
Technical support for the Boostr Services will be provided by Boostr to Customer in accordance with the terms of Appendix 1 to these Terms and Conditions.
9. Confidentiality, Security and Data Privacy.
- The parties may have access to and acquire Confidential Information of the other party. The Receiving Party agrees to protect from disclosure to third parties all such Confidential Information received from the Disclosing Party with the same degree of protection it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable care); provided, however, that the Receiving Party may disclose the terms of this Agreement to its legal and business advisors if such third parties agree to maintain the confidentiality of such Confidential Information under terms no less restrictive than those set forth herein. The Receiving Party further agrees to use the Confidential Information only for the purpose of performing this Agreement.
- Boostr shall implement reasonable and appropriate security measures designed to protect Customer Data from unauthorized access.
- Each party agrees to comply with all applicable laws, rules, regulations, and government orders and directives relating to Personal Data. If applicable, the parties agree to comply with the Data Protection Addendum published at www.boostr.com/terms, which is made part of this Agreement and hereby incorporated herein.
Boostr shall defend the Customer Indemnified Parties from and against any and all Claims and shall pay or reimburse such Customer Indemnified Parties for any and all third party damages, costs and expenses (including reasonable outside attorneys’ fees) incurred by such Customer Indemnified Parties in connection with any such Claim; provided that all relevant Customer Indemnified Parties provide Boostr with: (a) prompt written notice of the Claim; (b) sole control of the defense and settlement of the Claim (provided that Boostr must request and receive Customer’s written consent for any settlement in which Customer admits liability, or that requires Customer to take future action); (c) all reasonably available information and assistance reasonably requested by Boostr; and that (d) Customer has not compromised, settled or prejudiced such Claim. Boostr shall have no liability for any Claims pursuant to this Section 9 where such Claims arise from or are caused by: (i) Customer’s use of the Boostr Services other than in accordance with the Agreement; or (ii) modifications to the Boostr Services made by anyone other than Boostr or on its behalf. If any portion of the Boostr Services becomes the subject of a Claim, Boostr may, in its reasonable discretion and at its option, in addition to its obligations under this Section 10: (x) modify the Boostr Services to be non-infringing without material loss in functionality or performance; (y) obtain for Customer the right to continue use of the affected Boostr Services; or (z) if neither of the foregoing is available to Boostr on commercially reasonable terms, terminate this Agreement and refund to the Customer any fees previously paid for the period after termination.
11.Term and Termination
The term of this Agreement will coincide with the Subscription Term. Either party may terminate this Agreement: (a) as set forth in the Order Form, or (b) upon written notice to the other party in the event that a party commits a material breach of this Agreement and has not cured such breach within thirty (30) days written notice of such breach. Upon termination, Customer must immediately cease all use of the Boostr Services. The terms of Sections 4-13 will survive any termination or expiration of this Agreement.
12. General Provisions.
This Agreement constitutes the entire agreement between Customer and Boostr, and supersedes all previous agreements and understandings, whether oral or written, with respect to the subject matter hereof. This Agreement will be governed by the laws of the State of New York, excluding its conflicts of laws rules. Notices to be provided under this Agreement may be sent to the email address set forth on the Order Form, except that notices relating to breach or termination of the Agreement must be sent by first class mail, return receipt requested, to the mailing address set forth on the Order Form. If any part of this Agreement is found to be void, unenforceable or invalid, it will not affect the other provisions of this Agreement. This Agreement can only be modified by mutual written agreement of the parties. Failure by Boostr to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Customer may not assign this Agreement or any right or obligation hereunder without Boostr’s prior written consent. Each party will perform its obligations hereunder as an independent contractor and not as an agent or representative of the other party. Nothing in this Agreement will be deemed or construed as creating a partnership, joint venture, or any similar relationship between the parties.
“Boostr” means Boostr, Inc., a Delaware corporation.
“Boostr APIs” mean application programming interfaces that may be made available from time to time to Customer by Boostr.
“Boostr Service(s)” means the service(s) offered by Boostr on a commercial basis and ordered by Customer pursuant to an Order Form.
“Claim” means claims, demands, suits or proceedings made or brought by third parties to that alleges that the Boostr Services or any component thereof infringe any copyright, trade secret or issued patent.
“Confidential Information” means non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data and the terms of this Agreement. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; (4) is a comment or suggestion volunteered about the other party’s business, products or services; or (5) is required by law or judicial order, provided that the Receiving Party shall give the Disclosing Party prompt written notice of such required disclosure in order to afford the Disclosing Party an opportunity to seek a protective order or other legal remedy to prevent the disclosure, and shall reasonably cooperate with the Disclosing Party’s efforts to secure such a protective order or other legal remedy to prevent the disclosure.
“Customer” means the entity submitting the Order Form.
“Customer Data” means all data uploaded by or on behalf to the Boostr Services in connection with Customer’s use of the Boostr Services.
“Customer Indemnified Party” mean Customer and/or its directors, officers and employees against whom a Claim is made.
“Disclosing Party” means a party disclosing Confidential Information.
“Order Form” means the document mutually executed by Boostr and Customer by which Customer accepts the Agreement; and setting forth the identity of Customer, the Boostr Services, the Subscription Term, number of Users, the fees payable for the Boostr Services and any specially agreed terms and conditions between the parties.
“Personal Data” means any and all data pertaining to an identifiable individual. Personal Data shall include any such data in any media or format, including both paper and electronic.
“Receiving Party” means a party receiving Confidential Information.
“Service Description” means the description of the features and functionality of specific Services set forth on an applicable Order Form.
“Subscription Term” means the period of time that Customer is permitted to access and use the Boostr Services as set forth in the Services Order.
“Updates” means bug fixes, patches, error corrections, minor and major releases, non-new platform changes, or modifications or revisions that enhance existing performance without changing the basic functions of a Boostr Service. “Updates” excludes new products, modules, functionality or services for which Boostr generally charges a separate fee.
“User” means an employee, contractor or other individual authorized by Customer to access and use the Boostr Services.
Appendix 1 - Service Level Agreement
1. General Overview.
This Service Level Agreement (the “SLA”) details the service level commitment and technical support that will be provided by boostr which may include:
- Troubleshooting, handling issues, debugging, workarounds and hot fixes to assist Customer and promote general satisfaction of Customer.
- Technical answers to Customer’s questions and queries.
- Providing additional help materials (i.e., F.E. Q&A documents, technical forums).
Boostr provides in-app support available to all users. On any page in boostr, users can speak to an industry and boostr expert to trouble-shoot or ask questions.
Priority 1 – Blocking - Immediate: A level or rating indicating a catastrophic problem which may severely impact the Services, or in which the Services are down entirely or not functioning at a satisfactory level; a loss of Customer Data where no procedural workaround exists.
Priority 2 – Critical: A system problem where Services capacity is severely reduced. Significant impact to portions of the business operations and productivity is detected. The Services are exposed to potential loss or interruption of service.
Priority 3 - High: High impact problem which involves meaningful loss of functionality and where no workaround exist.
Priority 4 - Medium: A medium-to-low impact problem resulting in partial non-critical loss of functionality, such as a limited loss of data or loss of functionality and where a workaround exist.
Priority 5 - Low: A general usage question or request for a modification where there is no impact on the quality, performance or functionality of the Services.
Business Hours: Monday to Friday, 6:00 AM – 5:00 PM (Pacific Time), excluding United States holidays.
Workaround: A procedure, process or instruction that will allow Customer to bypass the problem encountered, and continue to benefit from the Services with minimal impact.
It will usually combine the benefit of a relatively quick resolution with the satisfactory behavior of the Services.
Hot Fix: If no workaround is available or acceptable for a problem that cannot wait for the next scheduled release, a Hot Fix may be issued. A Hot Fix is a small-scale update to the Services that resolves the specific problem or a small number of problems. A Hot Fix may solve only the most urgent aspects of a problem, until a complete solution is provided in the next Services update.
Scheduled Maintenance: Any maintenance of the Services that may degrade access to the Services. This maintenance is conducted by, or for, the Boostr and is performed only at weekend hours between the hours of 6:00 PM Friday to 12:00 AM Sunday (Pacific Time). Boostr shall use reasonable efforts to limit the time during which Scheduled Maintenance is performed, and shall use commercially reasonable efforts to provide at least one (1) business day of advance electronic notice of any Scheduled Maintenance.
3. Uptime & Availability.
3.1 Boostr will: (i) monitor and maintain the Subscription Service host servers and ensure connectivity, availability and operation of the host servers on the World Wide Web consistent with Boostr’s Availability Targets set forth below; (ii) monitor hardware and systems software and environmental controls; and (iii) provide Boostr’s standard activity and service level reporting, which includes monthly maintenance and software release update activity, as well as any Subscription Service Unavailability.
3.2 Availability Target: Boostr will maintain Availability (as defined below) of the Subscription Service 99.5% of the time during each calendar monthly reporting period, excluding (i) Scheduled Maintenance (as defined below); (ii) Unavailability (as defined below) caused by acts or omissions of Customer or Customer’s agents; (iii) Unavailability caused by network unavailability or bandwidth limitations outside Boostr network; (iv) issues arising from bugs or other problems in the software, firmware or hardware; (v) hacks, malicious introduction of viruses, disabling devices, and other forms of attacks that disrupt access to the Subscription Service; (vi) power outages or other telecommunications or Internet failures; and (vii) events of Force Majeure. In the case of subsections (v) and (vi), such events shall be included in the calculation of Unavailability if the outage could have been prevented by reasonable and customary precautions in the hosting industry, which precautions were not taken.
3.3 The Availability of the Subscription Service (as evidenced via Availability reporting provided by Boostr and Boostr’s agents and hosting providers) for a given calendar month will be calculated according to the following formula (referred to herein as the “Availability”): Where: “Unavailability” means that the Subscription Service is unavailable for access and/or use by Customer for any period of time; Total minutes in the month = TMM; Total minutes in month Unavailable = TMU; and Availability = ((TMM-TMU) x 100)/TMM.
3.4 Boostr reserves the right to perform any required Emergency Maintenance (as defined below) outside Scheduled Maintenance. Boostr will use reasonable efforts to notify Customer at least an hour before commencing any Emergency Maintenance outside Scheduled Maintenance and will use commercially reasonable efforts to limit and/or avoid impact to Customer.
3.5 Subscription Service Availability Credits: If during any full calendar month of the term of any Order Form associated with the Subscription Service, the Availability Percentage is lower than 99.5%, Boostr will provide Customer with a Subscription Service credits in accordance with the applicable Subscription Service Credit % set forth below. The Subscription Service credit shall be calculated against Monthly Fees for the applicable Order Form(s) affected.
The Subscription Service Credits are Customer’s exclusive remedies for any reduced Availability Percentage. Credits will applied to the sooner of the next subscription renewal invoice or applied to the next invoice for an active subscription. In the event of a termination before a credit can be applied, a refund will be provided upon subscription termination.
4. Service & Communication Requests.
All support requests will be managed via in-app help or via email to email@example.com. Boostr’s customer support team will use commercially reasonable efforts to respond through those channels to every query and request.
Boostr’s customer support team will be available after hours as needed for Severity 1 and Severity 2 issues. For all other issues, Boostr’s customer support team will be available during Business Hours.
5. Customer Support Response Times.
5.1 Response Times
During the availability stated above, Boostr’s customer support team will use commercially reasonable efforts to respond within the following time frames:
5.2 Target Resolution Times.
Boostr’s customer support team will use commercially reasonable efforts to meet the following resolution targets:
Appendix 2 - Data Protection Addendum
Customer has entered into an Order Form and applicable Terms and Conditions for Boostr Services (as amended from time to time, the “Agreement”) with Boostr, Inc. (“Boostr”), under which Boostr has agreed to provide the certain services described therein (“Services”) to Customer.
This Data Protection Addendum, including its appendices (the “Addendum”), supplements and forms part of the Agreement.
For purposes of this Addendum, the terms below shall have the meanings set forth below. Capitalized terms that are used but not otherwise defined in this Addendum shall have the meanings given in the Agreement.
- "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.
- “Applicable Data Protection Law” means any law or binding regulation of any jurisdiction applicable to the transfer, processing or storage of Personal Data pursuant to the Agreement, including without limitation, the GDPR.
- “EEA” means the European Economic Area.
- “EU” means the European Union.
- “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
- “Information Security Incident” means a breach of Boostr’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data in Boostr’s possession, custody or control. “Information Security Incidents” do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.
- “Personal Data” means any information relating to an identified or identifiable natural person that Customer makes available to Boostr in connection with the Services.
- “Security Documentation” means Annex 2 describing the Security Measures and any other documents and information made available by Boostr under Section 4 (Reviews and Audits of Compliance).
- “Security Measures” has the meaning given in Section 1.1 (Boostr’s Security Measures).
- “Standard Contractual Clauses” means the standard data protection clauses for the transfer of Personal Data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR and set forth in Annex 3.
- “Subprocessors” means third parties authorized under this Addendum to process Personal Data in relation to the Services.
- “Third Party Subprocessors” has the meaning given in Section 9 (Subprocessors).
- “Transfer Solution” means the Standard Contractual Clauses or another solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR.
- The terms “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Addendum have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.
2. Duration of Addendum
This Addendum will take effect on the Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, Boostr’s deletion of all Personal Data.
3. Processing of data
4. Data Deletion
- Deletion on Termination. On expiry of the Term, Customer instructs Boostr to delete all Personal Data from Boostr’s systems as soon as reasonably practicable, unless Applicable Data Protection Law requires otherwise.
5. Data Security
6. Impact Assessments and Consultations
Boostr will (taking into account the nature of the processing and the information available to Boostr) reasonably assist Customer in complying with its obligations under Applicable Data Protection Law in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by (a) making available for review copies of the Security Documentation or other documentation describing relevant aspects of Boostr’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement including this Addendum.
7. Data Subject Rights
- Customer’s Responsibility for Requests. During the Term, if Boostr receives any request from a data subject in relation to the data subject’s Personal Data, Boostr will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request.
- Boostr’s Data Subject Request Assistance. Boostr will (taking into account the nature of the processing of Personal Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to perform its obligation under Applicable Data Protection Law to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in Chapter III of the GDPR. Customer shall reimburse Boostr for any such assistance beyond providing self-service features included as part of the Services at Boostr’s then-current professional services rates, which shall be made available to Customer upon request.
8. Data Transfers
- Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Boostr’s Affiliates as Subprocessors. In addition, Customer generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”).
- Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at www.boostr.com/dataprotection as may be updated by Boostr from time to time in accordance with this Addendum).
- Requirements for Subprocessor Engagement. When engaging any Subprocessor, Boostr will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this Addendum with respect to Personal Data to the extent applicable to the nature of the services provided by such Subprocessor. Boostr shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
- Opportunity to Object to Subprocessor Changes.
When any new Third Party Subprocessor is engaged during the Term, Boostr will notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by updating the website listed in Section 9.2. If Customer objects to such engagement in a written notice to Boostr within 15 days of being informed thereof on reasonable grounds relating to the protection of Personal Data, Customer and Boostr 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 by providing written notice to Boostr.
Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Boostr to Customer in connection with this Addendum may be given (a) in accordance with the notice clause of the Agreement; (b) in writing (including email) to Boostr’s primary points of contact with Customer; and/or (c) to any email address 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.
11. Effect of These Terms
Except as expressly modified by the Addendum, the terms of the Agreement remain in full force and effect. To the extent of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.
Subject Matter and Details of the Data Processing
- Boostr’s provision of the Services to Customer.
Duration of the Processing
- From commencement of the Term until deletion of all Personal Data by Boostr in accordance with the Agreement.
Nature and Purpose of the Processing
- Boostr will process Personal Data for the purposes of providing the Services to Customer in accordance with the Agreement.
Categories of Personal Data
- The personal data transferred concern the following categories of data (please specify): Name, surname, e-mail address, phone number, job title.
- The personal data transferred concern the following categories of data subjects: Natural persons acting on behalf of data exporter’s contractors (ad agencies and advertisers).
As from the Addendum Effective Date, Boostr will implement and maintain the Security Measures set out in this Annex 2.
- Organizational management and dedicated staff responsible for the development, implementation and maintenance of Boostr’s information security program.
- Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Boostr’s organization, monitoring and maintaining compliance with Boostr’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
- Data security controls which include at a minimum, but may not be limited to, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available and industry standard encryption technologies for Personal Data that is: a) transmitted over public networks (i.e. the Internet) or when transmitted wirelessly b) at rest
- Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access when employment terminates or changes in job functions occur).
- Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that Boostr passwords that are assigned to its employees: (i) be at least eight (8) characters in length, (ii) not be stored in readable format on Boostr’s computer systems; (iii) must be changed every ninety (90) days; must have defined complexity; (iv) must have a history threshold to prevent reuse of recent passwords.
- Change management procedures and tracking mechanisms designed to test, approve and monitor all changes to Boostr’s technology and information assets.
- Incident / problem management procedures design to allow Boostr to investigate, respond to, mitigate and notify of events related to Boostr’s technology and information assets.
- Network security controls that provide for the use of enterprise firewalls, and intrusion detection systems and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
- Vulnerability assessment and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
- Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disasters.
Boostr may update or modify such Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.
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
Name of the data exporting organisation: The legal entity defined as data exporter in the Data Protection Addendum entered into between the parties.
(The data exporter)
Name of the data importing organisation: Boostr, Inc.
(the data importer)
each a “party”; together “the parties”.
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.
For the purposes of the Clauses:
'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;
'the data exporter' means the controller who transfers the personal data;
'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his 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;
'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 his instructions, the terms of the Clauses and the terms of the written subcontract;
'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;
'technical and organizational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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 Appendix 1 which forms an integral part of the Clauses.
3. Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clauses 4(b) to (i), Clauses 5(a) to (e), and (g) to (j), Clauses 6.1 and 6.2, Clause 7, Clause 8.2, and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clauses 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.
- The data subject can enforce against the sub processor this Clause, Clauses 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 sub processor shall be limited to its own processing operations under the Clauses.
- 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:
- 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;
- 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;
- that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2;
- 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, unauthorized 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;
- that it will ensure compliance with the security measures;
- 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;
- to forward any notification received from the data importer or any sub processor 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;
- 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 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;
- that, in the event of sub processing, the processing activity is carried out in accordance with Clause 11 by a sub processor 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
- that it will ensure compliance with Clauses 4(a) to (i).
5. Obligations of the data importer
The data importer agrees and warrants:
- 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;
- 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;
- that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
- 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 unauthorized access, and 3) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
- 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;
- 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;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub processing, 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;
- that, in the event of sub processing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the sub processor will be carried out in accordance with Clause 11;
- to send promptly a copy of any sub processor agreement it concludes under the Clauses to the data exporter.
- 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 sub processor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with Clause 6.1 against the data exporter, arising out of a breach by the data importer or his sub processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
- The data importer may not rely on a breach by a sub processor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in Clauses 6.1 and 6.2, arising out of a breach by the sub processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub processor agrees that the data subject may issue a claim against the data sub processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub processor shall be limited to its own processing operations under the Clauses.
7. Mediation and jurisdiction
- 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.
- 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
- 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.
- 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.
- 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 Clause 8.2. 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.
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.
- 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 fulfill 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.
- The prior written contract between the data importer and the sub processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in Clause 6.1 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub processing of the contract referred to in Clause 11.1 shall be governed by the law of the Member State in which the data exporter is established.
- 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
- 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 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.
- 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 Clause 12.1.