1.1.           “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.

1.2.           “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws and Regulations, and (b) is permitted to use the Service pursuant to the Agreement between Customer and RepsMate, but has not signed its own Order Form with RepsMate and is not a “Customer” as defined under the Agreement.

1.3.           “Authorized User” means any individual authorized or otherwise enabled by Customer to use the Service through Customer’s account.

1.4.           “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

1.5.           “Customer Data” means what is defined in the Agreement as “Customer Data.”

1.6.            “Data Protection Laws” means all privacy and data protection laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.

1.7.           “Data Subject” means an identified or identifiable natural person; 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.

1.8.           “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).

1.9.           “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq.

1.10.        “Personal Data” or “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with a particular Data Subject or household, which is included in Customer Data Processed by RepsMate on behalf of Customer under the Agreement.

1.11.        “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by RepsMate on behalf of Customer under the Agreement.

1.12.        “Personnel” means persons authorized by RepsMate to Process Customer’s Personal Data.

1.13.        “Process” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, blocking, erasure or destruction.

1.14.        “Processor” means the entity which Processes Personal Data on behalf of the Controller.

2.1.           Scope and Roles. This DPA applies when Personal Data is Processed by RepsMate strictly on behalf of Customer, as part of RepsMate’s provision of the Service. In this context and for the purposes of the GDPR or any similar Data Protection Laws, Customer is the data Controller and RepsMate is the data Processor; and for the purposes of the CCPA, Customer is the Business and RepsMate is the Service Provider.

2.2.           Subject Matter, Duration, Nature and Purpose of Processing. RepsMate Processes Customer’s Personal Data as part of providing Customer with the Service, pursuant to the specifications and for the duration under the Agreement.

2.3.           Type of Personal Data and Categories of Data Subjects. Customer and Authorized Users determine the identity of the persons which are part of the conversations and content analyzed by the Service, and the type and nature of any Personal Data (if any) exchanged in such conversations or included in such content. RepsMate has no control over the identity of the data subjects whose Personal Data is processed on behalf of Customer and over the types of Personal Data Processed. RepsMate captures voice prints of Authorized Users in connection with its speaker identification and call cataloging processes.

2.4.           Customer’s Processing of Personal Data; Instructions. Customer shall, in its use of the Service, only submit or otherwise have Personal Data Processed in accordance with the requirements of Data Protection Laws. RepsMate will only Process Personal Data on behalf of and in accordance with Customer’s reasonable instructions. Customer instructs RepsMate to Process Personal Data for the following purposes: (i) Processing related to the Service in accordance with the Agreement; (ii) Processing to comply with other reasonable instructions provided by Customer where such instructions are consistent with the Agreement; (iii) rendering Personal Data fully and irrevocably anonymous and non-personal; and (iv) Processing as required under any applicable laws to which RepsMate is subject, provided that RepsMate shall inform Customer of the legal requirement before Processing, unless prohibited under such law. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Without limitation, Customer will provide all necessary notices to relevant Data Subjects, including a description of the Service, and secure all necessary permissions and consents, or other applicable lawful grounds for Processing Personal Data pursuant to this DPA, and shall indemnify, defend and hold harmless any claim, damages or fine against RepsMate arising from any failure to acquire or use the Personal Data with legal consent or legitimate business purpose or in violation of any data protection legal requirement. RepsMate will inform Customer, if in RepsMate’s opinion an instruction infringes any provision under any Data Protection Laws and will be under no obligation to follow such instruction, until the matter is resolved in good-faith between the parties.

To the extent that RepsMate cannot comply with an instruction from Customer, (i) RepsMate shall promptly inform Customer, providing relevant details of the problem, (ii) RepsMate may, without any kind of liability to Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing such data) and/or suspend access to the Customer’s account, and (iii) if the parties do not agree on a resolution to the issue in question and the costs thereof, Customer may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing. Customer will have no further claims against RepsMate (including, without limitation, requesting refunds for the Service) pursuant to the termination of the Agreement and the DPA as described in this paragraph.

2.5.           CCPA Standard of Care; No Sale of Personal Information. RepsMate acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that RepsMate provides to Customer under the Agreement. RepsMate shall not have, derive, or exercise any rights or benefits regarding Personal Information Processed on Customer’s behalf, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA. RepsMate certifies that it understands the rules, requirements and definitions of the CCPA and agrees to refrain from selling (as such term is defined in the CCPA) any Personal Information Processed hereunder, without Customer’s prior written consent, nor taking any action that would cause any transfer of Personal Information to or from RepsMate under the Agreement or this DPA to qualify as “selling” such Personal Information under the CCPA.

Taking into account the nature of the Processing, RepsMate will reasonably assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to requests for exercising the Data Subjects’ rights under the GDPR or other Data Protection Laws, to request access, rectification or deletion of Personal Data, to restrict or object to further processing of such data, to receive a portable copy thereof, or to request not to be subject to automated individual decision-making. RepsMate will further reasonably assist Customer, upon Customer’s reasonable request, in ensuring compliance with Customer’s obligations in connection with the security of Processing, notification of a Personal Data Breach to supervisory authorities and affected Data Subjects, Customer’s data protection impact assessments and Customer’s prior consultation with supervisory authorities, insofar as it relates to RepsMate’s Processing of Personal Data under this DPA, and to the extent Customer does not otherwise have access to the relevant information, and that such information is available to RepsMate. Except for negligible costs, Customer will promptly reimburse RepsMate with costs and expenses incurred by RepsMate in connection with the provision of assistance to Customer under this DPA.

4.1.           Limitation of Access. RepsMate will ensure that RepsMate’s access to Personal Data is limited to those Personnel who require such access to perform the Agreement.

4.2.           Confidentiality. RepsMate will impose appropriate contractual obligations upon its Personnel engaged in the Processing of Personal Data, including relevant obligations regarding confidentiality, data protection, and data security. RepsMate will 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 in their responsibilities, and have executed written confidentiality agreements. RepsMate will ensure that such confidentiality agreements survive the termination of the employment or engagement of its Personnel.

4.3.           Further Disclosures. RepsMate may disclose and Process the Personal Data (a) to the extent required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, or (b) otherwise as required by applicable Data Protection Laws (in such a case, RepsMate shall inform Customer of the legal requirement before the disclosure, unless legally prohibited from doing so).

5.1.           RepsMate may engage third-party service providers to Process Personal Data on behalf of the Customer (“Sub-Processors“). Customer hereby provides RepsMate with a general authorization to engage the Sub-Processors listed at https://www.repsmate.com/sub-processors/. All Sub-Processors have entered into written agreements with RepsMate that bind them by data protection obligations substantially similar to those under this DPA. Where a Sub-Processor fails to fulfill its data protection obligations in connection with the Processing of Personal Data under this DPA, RepsMate will remain fully liable to Customer for the performance of that Sub-Processor’s obligations.

5.2.           RepsMate may engage with a new Sub-Processor (“New Sub-Processor“) to Process Personal Data on the Customer’s behalf. RepsMate’s webpage accessible via https://www.repsmate.com/sub-processors offers a mechanism to subscribe to notifications of new Sub-Processors used to Processed Personal Data, to which Customer shall subscribe, and when Customer subscribes, RepsMate shall provide notification of any new Sub-Processor(s) before authorizing such new Sub-Processor(s) to Process Personal Data in connection with the provision of the Service. Customer may object to the Processing of Customer’s Personal Data by the New Sub-Processor, for reasonable and explained grounds, by providing a written objection to office@repsmate.com within 5 business days following RepsMate’s written notice to Customer of the intended engagement with the New Sub-Processor. If the Customer timely sends RepsMate a written objection notice, the parties will make a good-faith effort to resolve the Customer’s objection. In the absence of a resolution, RepsMate will make commercially reasonable efforts to provide Customers with the same level of Service, without using the New Sub-Processor to Process Customer’s Personal Data.

6.1.           Transfers from the EEA, Switzerland and the United Kingdom to countries that offer adequate level or data protection. Personal Data may be transferred from EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland) (collectively, “EEA”), Switzerland and the United Kingdom (“UK”) to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the European Union, the Member States or the European Commission, or Switzerland or the UK as relevant (“Adequacy Decisions”), as applicable, without any further safeguard being necessary.

6.2.           Transfers to Other Countries. If the Processing of Personal Data by RepsMate includes transfers (either directly or via onward transfer) from the EEA, Switzerland and/or the UK to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by RepsMate for the lawful transfer of personal data (as defined in the GDPR) outside the EEA, Switzerland or the UK, as applicable, then the Standard Contractual Clauses shall apply.

Where the transfer of Personal Data is made subject to the Standard Contractual Clauses, the “data importer” thereunder shall be either RepsMate or its Sub-Processor, as the case may be and as determined by RepsMate, and the “data exporter” shall be the Controller of such Personal Data. If necessary, RepsMate will ensure that its Sub-Processor enters into Standard Contractual Clauses with Customer directly, and in such case Customer hereby gives RepsMate an instruction and mandate to sign the Standard Contractual Clauses with any such Sub-Processor in Customer’s name and on behalf of Customer. The Standard Contractual Clauses will not apply to Personal Data that relates to individuals located outside of the EEA, or that is not transferred, either directly or via onward transfer, outside the EEA.

7.1.           Controls. RepsMate will implement and maintain administrative, physical and technical safeguards designed for the protection of the security, confidentiality and integrity of Customer’s Personal Data, pursuant to the RepsMate Information Security Policy. RepsMate regularly monitors its compliance with these safeguards. RepsMate will not materially decrease the overall security of the Service during the term of the Agreement.

7.2.           Policies, Certifications and Audit Reports. RepsMate uses external auditors to verify the adequacy of its security measures. 

8.1.           RepsMate will maintain security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, will notify Customer without undue delay (as practicable under the circumstances, but no later than 48 hours) after becoming aware of a Personal Data Breach affecting Customer’s Personal Data being Processed hereunder by RepsMate or any of RepsMate’s Sub-Processors. RepsMate’s notice will at least: (a) describe the nature of the Personal Data Breach including where possible, the categories and an approximate number of Data Subjects concerned and the categories and an approximate number of Personal Data records concerned; (b) communicate the name and contact details of a designated officer onRepsMate’s data protection team, which will be available to provide any additionally available information about the Personal Data Breach; (c) describe the likely consequences of the Personal Data Breach; (d) describe the measures taken or proposed to be taken by RepsMate to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide the information at the same time, the information may be provided in phases without undue further delay.

8.2.          RepsMate will work diligently, pursuant to its incident management policies and procedures to promptly identify and remediate the cause of the Personal Data Breach and will inform the Customer accordingly.

8.3.          RepsMate’s liability for a Personal Data Breach toward Customer and any third party is subject to the following limitations: (a) the Personal Data Breach is a result of a breach of RepsMate’s information security obligations under this DPA; and (b) the Personal Data Breach is not caused by: (i) acts or omissions of Customer, or any person acting on behalf of or jointly with Customer, including any Authorized Users (collectively “Customer Representatives“); or (ii) Customer Representatives’ instructions to RepsMate.

8.4.           Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Personal Data Breach which directly or indirectly identifies RepsMate (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without RepsMate’s prior written approval, unless, and solely to the extent that, Customer is compelled to do so pursuant to applicable Data Protection Laws. In the latter case, unless prohibited by law, Customer shall provide RepsMate with reasonable prior written notice to provide RepsMate with the opportunity to object to such disclosure and in any case Customer will limit the disclosure to the minimum scope required.

9.1.           RepsMate will make available to Customer, pursuant to Customer’s reasonable written request, all information necessary for Customer to demonstrate compliance with the obligations laid down under Article 28 to the GDPR in relation to the Processing of Personal Data under this DPA by RepsMate and its Sub-Processors. Such information shall only be used by Customer to assess compliance with the aforesaid obligations, and may not be disclosed to any third party without RepsMate’s prior written approval. As soon as the purpose of such information is met, Customer will permanently dispose of all copies thereof.

9.2.           RepsMate will allow for and contribute to audits, including inspections, conducted by Customer or another reputable auditor mandated by Customer (who are each not a competitor of RepsMate or affiliated with such a competitor), to assess RepsMate’s compliance with its obligations under this DPA. RepsMate may satisfy the audit obligation under this section by providing Customer with attestations, certifications and summaries of audit reports conducted by accredited third party auditors. Audits by Customer are subject to the following terms: (i) the audit will be pre-scheduled in writing with RepsMate, at least 45 days in advance and will be performed not more than once a year (except for an audit following a Personal Data Breach); (ii) the auditor will execute a non-disclosure and non-competition undertaking toward RepsMate; (iii) the auditor will not have access to non-Customer data (iv) Customer will make sure that the audit will not interfere with or damage RepsMate’s business activities and information and network systems; (v) Customer will bear all costs and assume responsibility and liability for the audit; and (vi) Customer will receive only the auditor’s report, without any RepsMate ‘raw data’ materials, will keep the audit results in strict confidentiality and will use them solely for the specific purposes of the audit under this section; (vii) at the request of RepsMate, Customer will provide it with a copy of the auditor’s report; and (viii) as soon as the purpose of the audit is completed, Customer will permanently dispose of the audit report.

Upon termination or expiration of the Agreement, RepsMate shall (at Customer’s election) return or to the fullest extent technically feasible delete all Customer Data in its possession or control. This requirement shall not apply to the extent RepsMate is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems (e.g., in the form of audit logs), which Customer Data RepsMate shall securely isolate and protect from any further Processing, except to the extent required by applicable law.

The parties will attempt in good faith to resolve any dispute related to this DPA as a precondition to commencing legal proceedings, first by direct communications between the persons responsible for administering this DPA and next by negotiation between executives with authority to settle the controversy. Either party may give the other party a written notice of any dispute not resolved in the normal course of business. Within five business days after delivery of the notice, the receiving party will submit to the other party a written response. The notice and the response will include a statement of each party’s position and a summary of arguments supporting that position and the name and title of the executive who will represent that party. Within five business days after delivery of the disputing party’s notice, the executives of both parties will meet at a mutually acceptable time and place, including by phone, and thereafter as often as they reasonably deem necessary, to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.

This DPA will commence and become legally binding on the earlier of (i) the date of its execution, (ii) the effective date of the Agreement to which it relates, or (iii) the initiation of RepsMate’s Processing of Personal Data on behalf of Customer; and will continue until the Agreement expires or is terminated.

13.1.        Contractual Relationship. The parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, in which case each Authorized Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Customer Processes Personal Data on the behalf of such Authorized Affiliates, thus qualifying them as the “Controller”. All access to and use of the Service by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.

13.2.        Communication. The Customer shall remain responsible for coordinating all communication with RepsMate under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

Each party may by at least 45 days’ prior written notice to the other party, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws, to allow Processing of Customer Personal Data to be made (or continue to be made) without breach of that Data Protection Law. Pursuant to such notice: (a) RepsMate shall make commercially reasonable efforts to accommodate such modification requested by Customer or that RepsMate believes is necessary; and (b) Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by RepsMate to protect the RepsMate against additional risks, or to indemnify and compensate RepsMate for any further steps and costs associated with the variations made herein at Customer’s request. The parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer’s or RepsMate’s notice as soon as is reasonably practicable. In the event that the parties are unable to reach such an agreement within 30 days of such notice, then Customer or RepsMate may, by written notice to the other party, with immediate effect, terminate the Agreement to the extent that it relates to the Service which are affected by the proposed variations (or lack thereof). Customer will have no further claims against RepsMate (including, without limitation, requesting refunds) pursuant to the termination of the Agreement and the DPA as described in this Section.

15.1.        Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates of Customer and RepsMate, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of 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.

15.2.        For the avoidance of doubt, RepsMate’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates and Customer Representatives arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and its Authorized Affiliates and Customer Representatives and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.

15.3.        Also for the avoidance of doubt, each reference to the DPA in this DPA means this DPA including its schedules and appendices.

16.1.        In the event of any conflict or inconsistency between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Data.

16.2.        In the event of any conflict between certain provisions of this DPA and any of its Schedules and the EU Standard Contractual Clauses, the EU Standard Contractual Clauses shall prevail.