We are very delighted that you have shown interest in our enterprise. Data protection is of a particularly high priority for the management of the Alodia Offbeat Creative, LLC. The use of the Internet pages of the Alodia Offbeat Creative, LLC is possible without any indication of personal data; however, if a data subject wants to use special enterprise services via our website, processing of personal data could become necessary. If the processing of personal data is necessary and there is no statutory basis for such processing, we generally obtain consent from the data subject.
The processing of personal data, such as the name, address, e-mail address, or telephone number of a data subject shall always be in line with the General Data Protection Regulation (GDPR), and in accordance with the country-specific data protection regulations applicable to the Alodia Offbeat Creative, LLC. By means of this data protection declaration, our enterprise would like to inform the general public of the nature, scope, and purpose of the personal data we collect, use and process. Furthermore, data subjects are informed, by means of this data protection declaration, of the rights to which they are entitled.
As the controller, the Alodia Offbeat Creative, LLC has implemented numerous technical and organizational measures to ensure the most complete protection of personal data processed through this website. However, Internet-based data transmissions may in principle have security gaps, so absolute protection may not be guaranteed. For this reason, every data subject is free to transfer personal data to us via alternative means, e.g. by telephone.
The data protection declaration of the Alodia Offbeat Creative, LLC is based on the terms used by the European legislator for the adoption of the General Data Protection Regulation (GDPR). Our data protection declaration should be legible and understandable for the general public, as well as our customers and business partners. To ensure this, we would like to first explain the terminology used.
In this data protection declaration, we use, inter alia, the following terms:
a) Personal data
Personal data means any information relating to an identified or identifiable natural person (“data subject”). 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.
b) Data subject
Data subject is any identified or identifiable natural person, whose personal data is processed by the controller responsible for the processing.
Processing is any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
d) Restriction of processing
Restriction of processing is the marking of stored personal data with the aim of limiting their processing in the future.
Profiling means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.
Pseudonymisation is the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.
g) Controller or controller responsible for the processing
Controller or controller responsible for the processing is the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.
Processor is a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
Recipient is a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not. However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing.
j) Third party
Third party is a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data.
Consent of the data subject is any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.
2. Name and Address of the controller
Controller for the purposes of the General Data Protection Regulation (GDPR), other data protection laws applicable in Member states of the European Union and other provisions related to data protection is:
Alodia Offbeat Creative, LLC
13359 FM 529
Email: [email protected]
The data subject may, at any time, prevent the setting of cookies through our website by means of a corresponding setting of the Internet browser used, and may thus permanently deny the setting of cookies. Furthermore, already set cookies may be deleted at any time via an Internet browser or other software programs. This is possible in all popular Internet browsers. If the data subject deactivates the setting of cookies in the Internet browser used, not all functions of our website may be entirely usable.
4. Collection of general data and information
The website of the Alodia Offbeat Creative, LLC collects a series of general data and information when a data subject or automated system calls up the website. This general data and information are stored in the server log files. Collected may be (1) the browser types and versions used, (2) the operating system used by the accessing system, (3) the website from which an accessing system reaches our website (so-called referrers), (4) the sub-websites, (5) the date and time of access to the Internet site, (6) an Internet protocol address (IP address), (7) the Internet service provider of the accessing system, and (8) any other similar data and information that may be used in the event of attacks on our information technology systems.
When using these general data and information, the Alodia Offbeat Creative, LLC does not draw any conclusions about the data subject. Rather, this information is needed to (1) deliver the content of our website correctly, (2) optimize the content of our website as well as its advertisement, (3) ensure the long-term viability of our information technology systems and website technology, and (4) provide law enforcement authorities with the information necessary for criminal prosecution in case of a cyber-attack. Therefore, the Alodia Offbeat Creative, LLC analyzes anonymously collected data and information statistically, with the aim of increasing the data protection and data security of our enterprise, and to ensure an optimal level of protection for the personal data we process. The anonymous data of the server log files are stored separately from all personal data provided by a data subject.
5. Subscription to our newsletters
On the website of the Alodia Offbeat Creative, LLC, users are given the opportunity to subscribe to our enterprise’s newsletter. The input mask used for this purpose determines what personal data are transmitted, as well as when the newsletter is ordered from the controller.
The Alodia Offbeat Creative, LLC informs its customers and business partners regularly by means of a newsletter about enterprise offers. The enterprise’s newsletter may only be received by the data subject if (1) the data subject has a valid e-mail address and (2) the data subject registers for the newsletter shipping. A confirmation e-mail will be sent to the e-mail address registered by a data subject for the first time for newsletter shipping, for legal reasons, in the double opt-in procedure. This confirmation e-mail is used to prove whether the owner of the e-mail address as the data subject is authorized to receive the newsletter.
During the registration for the newsletter, we also store the IP address of the computer system assigned by the Internet service provider (ISP) and used by the data subject at the time of the registration, as well as the date and time of the registration. The collection of this data is necessary in order to understand the (possible) misuse of the e-mail address of a data subject at a later date, and it therefore serves the aim of the legal protection of the controller.
The personal data collected as part of a registration for the newsletter will only be used to send our newsletter. In addition, subscribers to the newsletter may be informed by e-mail, as long as this is necessary for the operation of the newsletter service or a registration in question, as this could be the case in the event of modifications to the newsletter offer, or in the event of a change in technical circumstances. There will be no transfer of personal data collected by the newsletter service to third parties. The subscription to our newsletter may be terminated by the data subject at any time. The consent to the storage of personal data, which the data subject has given for shipping the newsletter, may be revoked at any time. For the purpose of revocation of consent, a corresponding link is found in each newsletter. It is also possible to unsubscribe from the newsletter at any time directly on the website of the controller or to communicate this to the controller in a different way.
The newsletter of the Alodia Offbeat Creative, LLC contains so-called tracking pixels. A tracking pixel is a miniature graphic embedded in such e-mails, which are sent in HTML format to enable log file recording and analysis. This allows a statistical analysis of the success or failure of online marketing campaigns. Based on the embedded tracking pixel, the Alodia Offbeat Creative, LLC may see if and when an e-mail was opened by a data subject, and which links in the e-mail were called up by data subjects.
Such personal data collected in the tracking pixels contained in the newsletters are stored and analyzed by the controller in order to optimize the shipping of the newsletter, as well as to adapt the content of future newsletters even better to the interests of the data subject. These personal data will not be passed on to third parties. Data subjects are at any time entitled to revoke the respective separate declaration of consent issued by means of the double-opt-in procedure. After a revocation, these personal data will be deleted by the controller. The Alodia Offbeat Creative, LLC automatically regards a withdrawal from the receipt of the newsletter as a revocation.
7. Contact possibility via the website
The website of the Alodia Offbeat Creative, LLC contains information that enables a quick electronic contact to our enterprise, as well as direct communication with us, which also includes a general address of the so-called electronic mail (e-mail address). If a data subject contacts the controller by e-mail or via a contact form, the personal data transmitted by the data subject are automatically stored. Such personal data transmitted on a voluntary basis by a data subject to the data controller are stored for the purpose of processing or contacting the data subject. There is no transfer of this personal data to third parties.
8. Comments function in the blog on the website
The Alodia Offbeat Creative, LLC offers users the possibility to leave individual comments on individual blog contributions on a blog, which is on the website of the controller. A blog is a web-based, publicly-accessible portal, through which one or more people called bloggers or web-bloggers may post articles or write down thoughts in so-called blog posts. Blog posts may usually be commented on by third parties.
If a data subject leaves a comment on the blog published on this website, the comments made by the data subject are also stored and published, as well as information on the date of the commentary and on the user’s (pseudonym) chosen by the data subject. In addition, the IP address assigned by the Internet service provider (ISP) to the data subject is also logged. This storage of the IP address takes place for security reasons, and in case the data subject violates the rights of third parties or posts illegal content through a given comment. The storage of these personal data is, therefore, in the own interest of the data controller, so that he can exculpate in the event of an infringement. This collected personal data will not be passed to third parties unless such a transfer is required by law or serves the aim of the defense of the data controller.
9. Subscription to comments in the blog on the website
The comments made in the blog of the Alodia Offbeat Creative, LLC may be subscribed to by third parties. In particular, there is the possibility that a commenter subscribes to the comments following his comments on a particular blog post.
If a data subject decides to subscribe to the option, the controller will send an automatic confirmation e-mail to check the double opt-in procedure as to whether the owner of the specified e-mail address decided in favor of this option. The option to subscribe to comments may be terminated at any time.
10. Routine erasure and blocking of personal data
The data controller shall process and store the personal data of the data subject only for the period necessary to achieve the purpose of storage, or as far as this is granted by the European legislator or other legislators in laws or regulations to which the controller is subject to.
If the storage purpose is not applicable, or if a storage period prescribed by the European legislator or another competent legislator expires, the personal data are routinely blocked or erased in accordance with legal requirements.
11. Rights of the data subject
a) Right of confirmation
Each data subject shall have the right granted by the European legislator to obtain from the controller the confirmation as to whether or not personal data concerning him or her are being processed. If a data subject wishes to avail himself of this right of confirmation, he or she may, at any time, contact any employee of the controller.
b) Right of access
Each data subject shall have the right granted by the European legislator to obtain from the controller free information about his or her personal data stored at any time and a copy of this information. Furthermore, the European directives and regulations grant the data subject access to the following information:
- the purposes of the processing;
- the categories of personal data concerned;
- the recipients or categories of recipients to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organizations;
- where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;
- the existence of the right to request from the controller rectification or erasure of personal data, or restriction of processing of personal data concerning the data subject, or to object to such processing;
- the existence of the right to lodge a complaint with a supervisory authority;
- where the personal data are not collected from the data subject, any available information as to their source;
- the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) of the GDPR and, at least in those cases, meaningful information about the logic involved, as well as the significance and envisaged consequences of such processing for the data subject.
Furthermore, the data subject shall have a right to obtain information as to whether personal data are transferred to a third country or to an international organization. Where this is the case, the data subject shall have the right to be informed of the appropriate safeguards relating to the transfer.
If a data subject wishes to avail himself of this right of access, he or she may, at any time, contact any employee of the controller.
c) Right to rectification
Each data subject shall have the right granted by the European legislator to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.
If a data subject wishes to exercise this right to rectification, he or she may, at any time, contact any employee of the controller.
d) Right to erasure (Right to be forgotten)
Each data subject shall have the right granted by the European legislator to obtain from the controller the erasure of personal data concerning him or her without undue delay, and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies, as long as the processing is not necessary:
- The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed.
- The data subject withdraws consent to which the processing is based according to point (a) of Article 6(1) of the GDPR, or point (a) of Article 9(2) of the GDPR, and where there is no other legal ground for the processing.
- The data subject objects to the processing pursuant to Article 21(1) of the GDPR and there are no overriding legitimate grounds for the processing or the data subject objects to the processing pursuant to Article 21(2) of the GDPR.
- The personal data have been unlawfully processed.
- The personal data must be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject.
- The personal data have been collected in relation to the offer of information society services referred to in Article 8(1) of the GDPR.
If one of the aforementioned reasons applies, and a data subject wishes to request the erasure of personal data stored by the Alodia Offbeat Creative, LLC, he or she may, at any time, contact any employee of the controller. An employee of Alodia Offbeat Creative, LLC shall promptly ensure that the erasure request is complied with immediately.
Where the controller has made personal data public and is obliged pursuant to Article 17(1) to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform other controllers processing the personal data that the data subject has requested erasure by such controllers of any links to, or copy or replication of, those personal data, as far as processing is not required. An employee of the Alodia Offbeat Creative, LLC will arrange the necessary measures in individual cases.
e) Right of restriction of processing
Each data subject shall have the right granted by the European legislator to obtain from the controller restriction of processing where one of the following applies:
- The accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data.
- The processing is unlawful and the data subject opposes the erasure of the personal data and requests instead the restriction of their use instead.
- The controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defense of legal claims.
- The data subject has objected to processing pursuant to Article 21(1) of the GDPR pending the verification whether the legitimate grounds of the controller override those of the data subject.
If one of the aforementioned conditions is met, and a data subject wishes to request the restriction of the processing of personal data stored by the Alodia Offbeat Creative, LLC, he or she may at any time contact any employee of the controller. The employee of the Alodia Offbeat Creative, LLC will arrange the restriction of the processing.
f) Right to data portability
Each data subject shall have the right granted by the European legislator, to receive the personal data concerning him or her, which was provided to a controller, in a structured, commonly used and machine-readable format. He or she shall have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided, as long as the processing is based on consent pursuant to point (a) of Article 6(1) of the GDPR or point (a) of Article 9(2) of the GDPR, or on a contract pursuant to point (b) of Article 6(1) of the GDPR, and the processing is carried out by automated means, as long as the processing is not necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
Furthermore, in exercising his or her right to data portability pursuant to Article 20(1) of the GDPR, the data subject shall have the right to have personal data transmitted directly from one controller to another, where technically feasible and when doing so does not adversely affect the rights and freedoms of others.
In order to assert the right to data portability, the data subject may at any time contact any employee of the Alodia Offbeat Creative, LLC.
g) Right to object
Each data subject shall have the right granted by the European legislator to object, on grounds relating to his or her particular situation, at any time, to processing of personal data concerning him or her, which is based on point (e) or (f) of Article 6(1) of the GDPR. This also applies to profiling based on these provisions.
The Alodia Offbeat Creative, LLC shall no longer process the personal data in the event of the objection, unless we can demonstrate compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject, or for the establishment, exercise or defense of legal claims.
If the Alodia Offbeat Creative, LLC processes personal data for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing. This applies to profiling to the extent that it is related to such direct marketing. If the data subject objects to the Alodia Offbeat Creative, LLC to the processing for direct marketing purposes, the Alodia Offbeat Creative, LLC will no longer process the personal data for these purposes.
In addition, the data subject has the right, on grounds relating to his or her particular situation, to object to processing of personal data concerning him or her by the Alodia Offbeat Creative, LLC for scientific or historical research purposes, or for statistical purposes pursuant to Article 89(1) of the GDPR, unless the processing is necessary for the performance of a task carried out for reasons of public interest.
In order to exercise the right to object, the data subject may contact any employee of the Alodia Offbeat Creative, LLC. In addition, the data subject is free in the context of the use of information society services, and notwithstanding Directive 2002/58/EC, to use his or her right to object by automated means using technical specifications.
h) Automated individual decision-making, including profiling
Each data subject shall have the right granted by the European legislator not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her, or similarly significantly affects him or her, as long as the decision (1) is not is necessary for entering into, or the performance of, a contract between the data subject and a data controller, or (2) is not authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, or (3) is not based on the data subject’s explicit consent.
If the decision (1) is necessary for entering into, or the performance of, a contract between the data subject and a data controller, or (2) it is based on the data subject’s explicit consent, the Alodia Offbeat Creative, LLC shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and contest the decision.
If the data subject wishes to exercise the rights concerning automated individual decision-making, he or she may, at any time, contact any employee of the Alodia Offbeat Creative, LLC.
i) Right to withdraw data protection consent
Each data subject shall have the right granted by the European legislator to withdraw his or her consent to processing of his or her personal data at any time.
If the data subject wishes to exercise the right to withdraw the consent, he or she may, at any time, contact any employee of the Alodia Offbeat Creative, LLC.
12. Legal basis for the processing
Art. 6(1) lit. a GDPR serves as the legal basis for processing operations for which we obtain consent for a specific processing purpose. If the processing of personal data is necessary for the performance of a contract to which the data subject is party, as is the case, for example, when processing operations are necessary for the supply of goods or to provide any other service, the processing is based on Article 6(1) lit. b GDPR. The same applies to such processing operations which are necessary for carrying out pre-contractual measures, for example in the case of inquiries concerning our products or services. Is our company subject to a legal obligation by which processing of personal data is required, such as for the fulfillment of tax obligations, the processing is based on Art. 6(1) lit. c GDPR.
In rare cases, the processing of personal data may be necessary to protect the vital interests of the data subject or of another natural person. This would be the case, for example, if a visitor were injured in our company and his name, age, health insurance data or other vital information would have to be passed on to a doctor, hospital or other third party. Then the processing would be based on Art. 6(1) lit. d GDPR.
Finally, processing operations could be based on Article 6(1) lit. f GDPR. This legal basis is used for processing operations which are not covered by any of the abovementioned legal grounds, if processing is necessary for the purposes of the legitimate interests pursued by our company or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data. Such processing operations are particularly permissible because they have been specifically mentioned by the European legislator. He considered that a legitimate interest could be assumed if the data subject is a client of the controller (Recital 47 Sentence 2 GDPR).
13. The legitimate interests pursued by the controller or by a third party
Where the processing of personal data is based on Article 6(1) lit. f GDPR our legitimate interest is to carry out our business in favor of the well-being of all our employees and the shareholders.
14. Period for which the personal data will be stored
The criteria used to determine the period of storage of personal data is the respective statutory retention period. After expiration of that period, the corresponding data is routinely deleted, as long as it is no longer necessary for the fulfillment of the contract or the initiation of a contract.
15. Provision of personal data as statutory or contractual requirement; Requirement necessary to enter into a contract; Obligation of the data subject to provide the personal data; possible consequences of failure to provide such data
We clarify that the provision of personal data is partly required by law (e.g. tax regulations) or can also result from contractual provisions (e.g. information on the contractual partner).
Sometimes it may be necessary to conclude a contract that the data subject provides us with personal data, which must subsequently be processed by us. The data subject is, for example, obliged to provide us with personal data when our company signs a contract with him or her. The non-provision of the personal data would have the consequence that the contract with the data subject could not be concluded.
Before personal data is provided by the data subject, the data subject must contact any employee. The employee clarifies to the data subject whether the provision of the personal data is required by law or contract or is necessary for the conclusion of the contract, whether there is an obligation to provide the personal data and the consequences of non-provision of the personal data.
16. Existence of automated decision-making
As a responsible company, we do not use automatic decision-making or profiling.
Customer EU Data Processing Addendum
This Data Processing Addendum (“DPA“), forms part of the Agreement between The Rocket Science Group LLC d/b/a MailChimp (“MailChimp“) and Alodia Offbeat Creative, LLC (“Customer“) and shall be effective on the date both parties execute this DPA (Effective Date“). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
“Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.
“Customer Data” means any Personal Data that MailChimp processes on behalf of Customer as a Data Processor in the course of providing Services, as more particularly described in this DPA.
“Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
“Data Controller” means an entity that determines the purposes and means of the processing of Personal Data.
“Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.
“EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive“) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR“); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
“EEA” means, for the purposes of this DPA, the European Economic Area, United Kingdom and Switzerland.
“Group” means any and all Affiliates that are part of an entity’s corporate group.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Privacy Shield” means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017 respectively.
“Privacy Shield Principles” means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).
“Processing” has the meaning given to it in the GDPR and “process“, “processes” and “processed” shall be interpreted accordingly.
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
“Services” means any product or service provided by MailChimp to Customer pursuant to the Agreement.
“Sub-processor” means any Data Processor engaged by MailChimp or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or members of the MailChimp Group.
2. Relationship with the Agreement
2.1 The parties agree that DPA shall replace any existing DPA the parties may have previously entered into in connection with the Services.
2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
2.4 Any claims against MailChimp or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise. Customer further agrees that any regulatory penalties incurred by MailChimp in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce MailChimp’s liability under the Agreement as if it were liability to the Customer under the Agreement.
2.5 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.6 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3. Scope and Applicability of this DPA
3.1 This DPA applies where and only to the extent that MailChimp processes Customer Data that originates from the EEA and/or that is otherwise subject to EU Data Protection Law on behalf of Customer as Data Processor in the course of providing Services pursuant to the Agreement.
3.2 Part A (being Section 4 – 8 (inclusive) of this DPA, as well as Annexes A and B of this DPA) shall apply to the processing of Customer Data within the scope of this DPA from the Effective Date.
3.3 Part B (being Sections 9-12 (inclusive) of this DPA) shall apply to the processing of Customer Data within the scope of the DPA from and including 25th May 2018. For the avoidance of doubt, Part B shall apply in addition to, and not in substitution for, the terms in Part A.
Part A: General Data Protection Obligations
4. Roles and Scope of Processing
4.1 Role of the Parties. As between MailChimp and Customer, Customer is the Data Controller of Customer Data, and MailChimp shall process Customer Data only as a Data Processor acting on behalf of Customer.
4.2. Customer Processing of Customer Data. Customer agrees that (i) it shall comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to MailChimp; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for MailChimp to process Customer Data and provide the Services pursuant to the Agreement and this DPA.
4.3 MailChimp Processing of Customer Data. MailChimp shall process Customer Data only for the purposes described in this DPA and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to MailChimp in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and MailChimp.
4.4 Details of Data Processing
(a) Subject matter: The subject matter of the data processing under this DPA is the Customer Data.
(b) Duration: As between MailChimp and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
(c) Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of MailChimp’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
(d) Nature of the processing: MailChimp provides an email service, automation and marketing platform and other related services, as described in the Agreement.
(e) Categories of data subjects: Any individual accessing and/or using the Services through the Customer’s account (“Users“); and any individual: (i) whose email address is included in the Customer’s Distribution List; (ii) whose information is stored on or collected via the Services, or (iii) to whom Users send emails or otherwise engage or communicate with via the Services (collectively, “Subscribers“).
(f) Types of Customer Data:
- (i) Customer and Users: identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility);
- (ii) Subscribers: identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address), personal interests or preferences (including purchase history, marketing preferences and publically available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information).
5.1 Authorized Sub-processors. Customer agrees that MailChimp may engage Sub-processors to process Customer Data on Customer’s behalf. The Sub-processors currently engaged by MailChimp and authorized by Customer are listed in Annex A.
5.2 Sub-processor Obligations. MailChimp shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Customer Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause MailChimp to breach any of its obligations under this DPA.
6.1 Security Measures. MailChimp shall implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data, in accordance with MailChimp’s security standards described in Annex B (“Security Measures“).
6.2 Updates to Security Measures. Customer is responsible for reviewing the information made available by MailChimp relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that MailChimp may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
6.3 Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
7. Security Reports and Audits
7.1 Customer acknowledges that MailChimp is regularly audited against SSAE 16 and PCI standards by independent third party auditors and internal auditors, respectively. Upon request, MailChimp shall supply (on a confidential basis) a summary copy of its audit report(s) (“Report“) to Customer, so that Customer can verify MailChimp’s compliance with the audit standards against which it has been assessed, and this DPA.
7.2 MailChimp shall also provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires that are necessary to confirm MailChimp’s compliance with this DPA, provided that Customer shall not exercise this right more than once per year.
8. International Transfers
8.1 Data center locations. MailChimp may transfer and process Customer Data anywhere in the world where MailChimp, its Affiliates or its Sub-processors maintain data processing operations. MailChimp shall at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.
8.2 Privacy Shield. To the extent that MailChimp processes any Customer Data protected by EU Data Protection Law under the Agreement and/or that originates from the EEA, in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for Personal Data, the parties acknowledge that MailChimp shall be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Customer Data by virtue of having self-certified its compliance with Privacy Shield. MailChimp agrees to protect such Personal Data in accordance with the requirements of the Privacy Shield Principles. If MailChimp is unable to comply with this requirement, MailChimp shall inform Customer.
8.3 Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8.2 shall not apply if and to the extent that MailChimp adopts an alternative data export solution for the lawful transfer of Personal Data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which Personal Data is transferred).
Part B: GDPR Obligations from 25 May 2018
9. Additional Security
9.1 Confidentiality of processing. MailChimp shall ensure that any person who is authorized by MailChimp to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
9.2 Security Incident Response. Upon becoming aware of a Security Incident, MailChimp shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
10. Changes to Sub-processors
10.1 MailChimp shall (i) provide an up-to-date list of the Sub-processors it has appointed upon written request from Customer; and (ii) notify Customer (for which email shall suffice) if it adds or removes Sub-processors at least 10 days prior to any such changes.
10.2 Customer may object in writing to MailChimp’s appointment of a new Sub-processor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Customer may suspend or terminate the Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).
11. Return or Deletion of Data
11.1 Upon termination or expiration of the Agreement, MailChimp shall (at Customer’s election) delete or return to Customer all Customer Data (including copies) in its possession or control, save that this requirement shall not apply to the extent MailChimp 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, which Customer Data MailChimp shall securely isolate and protect from any further processing, except to the extent required by applicable law.
12.1 The Services provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Customer Data, which Customer may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Customer Data within the Services, MailChimp shall (at Customer’s expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to MailChimp, MailChimp shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. If MailChimp is required to respond to such a request, MailChimp shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
12.2 If a law enforcement agency sends MailChimp a demand for Customer Data (for example, through a subpoena or court order), MailChimp shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, MailChimp may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then MailChimp shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless MailChimp is legally prohibited from doing so.
12.3 To the extent MailChimp is required under EU Data Protection Law, MailChimp shall (at Customer’s expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
IN WITNESS WHEREOF, the parties have caused this DPA to be executed by their authorized representative:
The Rocket Science Group LLC d/b/a MailChimp
Name: Daniel Kurzius
Date: May 29, 2018
Alodia Offbeat Creative, LLC
Name: Liv Hadden
Date: May 29, 2018
Annex A – List of MailChimp Sub-processors
MailChimp uses its Affiliates and a range of third party Sub-processors to assist it in providing the Services (as described in the Agreement). These Sub-processors set out below provide cloud hosting and storage services; content delivery and review services; assist in providing customer support; as well as incident tracking, response, diagnosis and resolution services.
|Entity Name||Corporate Location|
|E-Hawk||New York, USA|
|El Camino||California, USA|
|R.R. Donnelley||Illinois, USA|
Annex B – Security Measures
The Security Measures applicable to the Services are described here https://mailchimp.com/about/