Data Processing Addendum
This Data Processing Addendum (“DPA”) is incorporated by reference into the Terms and Conditions (“Agreement”), and sets out the terms that apply with regard to the Processing of Personal Data (as defined below) by Jiminny, on behalf of Customer, in the course of providing the Jiminny Service to Customer under the Agreement.
All capitalized terms not defined herein will have the meaning set forth in the Agreement.
- “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.
- “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 Jiminny, but has not signed its own Order Form with Jiminny and is not a “Customer” as defined under the Agreement.
- “Authorized User” means any individual authorized or otherwise enabled by Customer to use the Service through Customer’s account.
- “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq.
- “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
- “Information Security Policy” means the security documentation applicable to the Service purchased by Customer, as updated from time to time, as made reasonably available to Customer by Jiminny.
- “Customer Data” means what is defined in the Agreement as “Customer Data”.
- “Data Protection Laws and Regulations” 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.
- “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.
- “GDPR” means: (i) 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) (the “EEA GDPR”); and (ii) the UK General Data Protection Regulation as defined by the UK Data Protection Act 2018 (the “UK GDPR”).
- “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 Jiminny on behalf of Customer under the Agreement.
- “Other Parties to the Call” – parties to Customer’s phone calls, video calls and online demos, other than Personnel.
- “Personal Data Breach” means a confirmed or reasonably suspected breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, access to, or acquisition of Personal Data transmitted, stored or otherwise Processed by Jiminny on behalf of Customer under the Agreement.
- “Personnel” means persons authorized by Jiminny to Process Customer’s Personal Data.
- “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, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
- “Processor” means the entity which Processes Personal Data on behalf of the Controller.
- “EEA Standard Contractual Clauses” or “EEA SCC” means the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2021/914/EU and as provided at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj
- “UK Standard Contractual Clauses” or “UK SCC” means the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU and as provided at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010D0087
2. Data Processing
2.1 Scope and Roles
This DPA applies when Personal Data is Processed by Jiminny strictly on behalf of Customer, as part of Jiminny’s provision of the Service. In this context and for the purposes of the GDPR, Customer is the data Controller and Jiminny is the data Processor; and for the purposes of the CCPA, Customer is the Business and Jiminny is the Service Provider.
2.2. 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 placed, recorded and analyzed by the Service, and the type and nature of any Personal Data (if any) exchanged in such conversations. Jiminny 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. Jiminny captures voice prints of Authorized Users in connection with its speaker identification and activity cataloging processes.
2.3. Subject Matter, Duration, Nature and Purpose of Processing
Jiminny Processes Customer’s Personal Data as part of providing Customer with the Service, pursuant to the specifications and for the duration under the Agreement.
2.4. 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 and Regulations. Jiminny will only Process Personal Data on behalf of and in accordance with Customer’s reasonable instructions. Customer instructs Jiminny 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 Jiminny is subject, provided that Jiminny 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 and Regulations. 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 Jiminny 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. Jiminny will inform Customer, if in Jiminny’s opinion an instruction infringes any provision under any Data Protection Laws and Regulations 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 Jiminny cannot comply with an instruction from Customer, (i) Jiminny shall promptly inform Customer, providing relevant details of the problem, (ii) Jiminny 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 Jiminny (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. Processing for Legitimate Purposes
Notwithstanding, Jiminny may Process Personal Information for legitimate business purposes, including archiving, backup and disaster recovery, cyber security, operations, control, improvements and development of Jiminny’s Service, fraud and service misuse prevention and legal and administrative proceedings.
2.6. CCPA Standard of Care; No Sale of Personal Information
Jiminny acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that Jiminny provides to Customer under the Agreement. Jiminny 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. Jiminy represents and warrants 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 Jiminny under the Agreement or this DPA to qualify as “selling” such Personal Information under the CCPA.
3. Rights of Individuals
Jiminny will, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject, whose Personal Data is included in Customer’s Personal Data, or a request by the Data Subject’s legal guardians, to exercise the right to access, correct, amend or delete Personal Data related to the Data Subject, or to exercise such other personal right that the Data Subject is entitled to pursuant to the applicable Data Protection Laws and Regulations.
Taking into account the nature of the Processing, Jiminny will reasonably assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the Data Subjects’ rights under the GDPR or other Data Protection Laws and Regulations, 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. Jiminny 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 Jiminny’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 Jiminny.
Except for negligible costs, Customer will promptly reimburse Jiminny with costs and expenses incurred by Jiminny in connection with the provision of assistance to Customer under this DPA.
4. Jiminny Personnel
4.1. Limitation of Access
Jiminny will ensure that Jiminny’s access to Personal Data is limited to those Personnel who require such access to perform the Agreement.
Jiminny 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. Jiminny 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. Jiminny will ensure that such confidentiality agreements survive the termination of the employment or engagement of its Personnel.
4.3. Further Disclosure
Jiminny 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 and Regulations (in such a case, Jiminny shall inform Customer of the legal requirement before the disclosure, unless legally prohibited from doing so).
Jiminny 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 Jiminny Information Security Policy. Jiminny regularly monitors its compliance with these safeguards. Jiminny will not materially decrease the overall security of the Service during the term of the Agreement.
5.2. Policies, Certifications and Audit Reports
Jiminny will engage external auditors to verify the adequacy of its security measures. The internal controls of the Service are subject to periodic testing by such auditors.
Upon Customer’s written request at reasonable intervals and subject to confidentiality limitations, Jiminny will make available to Customer that is not a Jiminny competitor (or to a third party auditor on Customer’s behalf, that is not a Jiminny competitor and subject to the auditor’s execution of Jiminny’s non-disclosure agreement), the then most recent version of the Jiminny Information Security Policy summaries of third-party audit or certification reports commonly made available to Jiminny Customers.
6. Personal Data Breach Management and Notification
6.1. Prevention and Management
Jiminny will maintain security incident management policies and procedures and 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 Jiminny or any of Jiminny’s Sub-Processors.
Jiminny’s notice will at least: (a) describe the nature of the Personal Data Breach including where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (b) communicate the name and contact details of a designated officer on Jiminny’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 Jiminny 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.
Jiminny 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 Customer accordingly.
6.3. Limitation of Liability
Jiminny’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 Jiminny’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 Jiminny.
7. Data Transfer
7.1. 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.
7.2. Transfers to Other Countries
If the Processing of Personal Data by Jiminny requires transfers (either directly or via onward transfer) from the EEA and/or Switzerland to other countries which have not been subject to a relevant Adequacy Decision, such transfers must be performed through an alternative recognized compliance mechanism as defined in the EEA GDPR including, as applicable, the EEA Standard Contractual Clauses.
If the Processing of Personal Data by Jiminny requires transfers (either directly or via onward transfer) from the UK to other countries which have not been subject to a relevant Adequacy Decision, such transfers must be performed through an alternative recognized compliance mechanism as defined in the UK GDPR including, as applicable, the UK Standard Contractual Clauses.
Where the transfer of Personal Data is made subject to the EEA Standard Contractual Clauses or the UK Standard Contractual Clauses, the “data importer” thereunder shall be either Jiminny or its Sub-Processor, as the case may be and as determined by Jiminny, and the “data exporter” shall be the Controller of such Personal Data. If necessary, Jiminny will ensure that its Sub-Processor enters into Standard Contractual Clauses with Customer directly. The Standard Contractual Clauses will not apply to Personal Data that relates to individuals located outside of the EEA or UK, or that is not transferred, either directly or via onward transfer, outside the EEA or UK.
8. Return and Deletion of Personal Data
8.1. Upon termination or expiration of the Agreement, Jiminny 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 Jiminny 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 Jiminny shall securely isolate and protect from any further Processing, except to the extent required by applicable law
9. Anonymized and Aggregated Data
9.1. Jiminny may Process data based on extracts of Personal Data on an aggregated and non-identifiable forms, for Jiminny’s legitimate business purposes, including for testing, development, controls and operations of the Service, and may share and retain such data at Jiminny’s discretion.
10. Dispute Resolution
10.1. 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 (5) 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 (5) 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.
11.1. Authorization to Process
Jiminny may engage third-party service providers to Process Personal Data on behalf of Customer (“Sub-Processors“). Customer hereby provides Jiminny with a general authorization to engage the Sub-Processors listed here. All Sub-Processors have entered into written agreements with Jiminny that bind them by data protection obligations substantially similar to those under this DPA. Where a Sub-Processor fails to fulfil its data protection obligations in connection with the Processing of Personal Data under this DPA, Jiminny will remain fully liable to Customer for the performance of that Sub-Processor’s obligations.
11.2. New Processors
Jiminny may engage with a new Sub-Processor (“New Sub-Processor“) to Process Personal Data on Customer’s behalf. Customer may object to the Processing of Customer’s Personal Data by the New Sub-Processor, for reasonable and explained grounds, within 5 business days following Jiminny’s written notice to Customer of the intended engagement with the New Sub-Processor. If Customer timely sends Jiminny a written objection notice, the parties will make a good-faith effort to resolve Customer’s objection. In the absence of a resolution, Jiminny will make commercially reasonable efforts to provide Customer with the same level of Service, without using the New Sub-Processor to Process Customer’s Personal Data.
12.1. 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 Jiminny’s Processing of Personal Data on behalf of Customer; and will continue until the Agreement expires or is terminated.
13.1. 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.
13.2. In the event of any conflict or inconsistency between certain provisions of this DPA and any of its Schedules and the EEA Standard Contractual Clauses or UK Standard Contractual Clauses, to the extent such EEA Standard Contractual Clauses or UK Standard Contractual Clauses are executed by and between Customer and Jiminny, the EEA Standard Contractual Clauses or UK Standard Contractual Clauses shall prevail.