Accept this amendment agreement by contacting your account team. This agreement must be accepted to apply.
The Customer agreeing to these terms ("Customer") and Cloudmersive, LLC ("Cloudmersive") as from the Amendment Effective Date (as defined below), effectively replaces any previously applicable data processing amendment and/or other terms previously applicable to privacy, data processing and/or data security.
This Data Processing Amendment reflects the parties' agreement with respect to the terms governing the processing and security of Customer Data under the applicable Agreement.
2.1. Capitalized terms used but not defined in this Data Processing Amendment have the meanings given elsewhere in the applicable Agreement. In this Data Processing Amendment, unless stated otherwise:
"Additional Products" means products, services and applications that are not part of the Services but that may be accessible, via the Admin Console or otherwise, for use with the Services.
"Additional Security Controls" means security resources, features, functionality and/or controls that Customer may use at its option and/or as it determines. "Additional Security Controls" may include the Admin Console and other features and functionality of the Services such as two factor authentication, security key enforcement and monitoring capabilities.
"Advertising" means online advertisements displayed by Cloudmersive to End Users, excluding any advertisements Customer expressly chooses to have Cloudmersive or any of its Affiliates display in connection with the Services under a separate agreement (for example, Cloudmersive AdSense advertisements implemented by Customer on a website created by Customer using any Cloudmersive Sites functionality within the Services).
"Affiliate" means any entity controlling, controlled by, or under common control with a party, where "control" is defined as: (a) the ownership of at least fifty percent (50%) of the equity or beneficial interests of the entity; (b) the right to vote for or appoint a majority of the board of directors or other governing body of the entity; or (c) the power to exercise a controlling influence over the management or policies of the entity.
"Alternative Transfer Solution" means a solution, other than the Model Contract Clauses, that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
"Amendment Effective Date" means the date on which Customer accepted, or the parties otherwise agreed to, this Data Processing Amendment.
"Customer Data" means data submitted, stored, sent or received via the Services by Customer, its Affiliates or End Users.
"Customer Personal Data" means personal data contained within the Customer Data.
"Data Incident" means a breach of Cloudmersive's security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by Cloudmersive. "Data Incidents" will not include unsuccessful attempts or activities that do not compromise the security of Customer Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
"Domain" means the primary domain and any secondary domains managed together by Customer within a single instance of the Admin Console.
"EEA" means the European Economic Area.
"European Data Protection Legislation" means, as applicable: (a) the GDPR; and/or (b) the Federal Data Protection Act of 19 June 1992 (Switzerland).
"Full Activation Date" means: (a) if this Data Processing Amendment is automatically incorporated into the applicable Agreement, the Amendment Effective Date; or (b) if Customer accepted or the parties otherwise agreed to this Data Processing Amendment, the eighth day after the Amendment Effective Date.
"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.
"Model Contract Clauses" or "MCCs" means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
"Non-European Data Protection Legislation" means data protection or privacy legislation in force outside the European Economic Area and Switzerland.
"Notification Email Address" means the email address(es) designated by Customer in the Admin Console or the Order Form to receive certain notifications from Cloudmersive.
"Services" means the following services, as applicable: (a) Cloudmersive APIs, (b) Cloudmersive Account Portal.
"Subprocessors" means third parties authorized under this Data Processing Amendment to have logical access to and process Customer Data in order to provide parts of the Services and related technical support.
"Term" means the period from the Amendment Effective Date until the end of Cloudmersive's provision of the Services under the applicable Agreement, including, if applicable, any period during which provision of the Services may be suspended and any post-termination period during which Cloudmersive may continue providing the Services for transitional purposes.
2.2. The terms "personal data", "data subject", "processing", "controller", "processor" and "supervisory authority" as used in this Data Processing Amendment have the meanings given in the GDPR, and the terms "data importer" and "data exporter" have the meanings given in the Model Contract Clauses, in each case irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies.
3.1 This Data Processing Amendment will take effect on the Amendment Effective Date and, notwithstanding expiry of the Term, remain in effect until, and automatically expire upon, deletion of all Customer Data by Cloudmersive as described in this Data Processing Amendment.
4.1 Application of European Legislation. The parties acknowledge and agree that the European Data Protection Legislation will apply to the processing of Customer Personal Data if, for example:
(a) the processing is carried out in the context of the activities of an establishment of Customer in the territory of the EEA; and/or
(b) the Customer Personal Data is personal data relating to data subjects who are in the EEA and the processing relates to the offering to them of goods or services in the EEA or the monitoring of their behaviour in the EEA.
4.2 Application of Non-European Legislation. The parties acknowledge and agree that Non-European Data Protection Legislation may also apply to the processing of Customer Personal Data.
4.3 Application of Data Processing Amendment. Except to the extent this Data Processing Amendment states otherwise, the terms of this Data Processing Amendment will apply irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies to the processing of Customer Personal Data.
5.1 Roles and Regulatory Compliance; Authorization
5.1.1. Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
(a) the subject matter and details of the processing are described in Appendix 1;
(b) Cloudmersive is a processor of that Customer Personal Data under the European Data Protection Legislation;
(c) Customer is a controller or processor, as applicable, of that Customer Personal Data under the European Data Protection Legislation; and
(d) each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
5.1.2. Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to Cloudmersive that Customer's instructions and actions with respect to that Customer Personal Data, including its appointment of Cloudmersive as another processor, have been authorized by the relevant controller.
5.1.3. Responsibilities under Non-European Legislation. If Non-European Data Protection Legislation applies to either party's processing of Customer Personal Data, the parties acknowledge and agree that the relevant party will comply with any obligations applicable to it under that legislation with respect to the processing of that Customer Personal Data.
5.2 Scope of Processing
5.2.1 Customer's Instructions. By entering into this Data Processing Amendment, Customer instructs Cloudmersive to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services and related technical support; (b) as further specified via Customer's use of the Services (including the Admin Console and other functionality of the Services) and related technical support; (c) as documented in the form of the applicable Agreement, including this Data Processing Amendment; and (d) as further documented in any other written instructions given by Customer and acknowledged by Cloudmersive as constituting instructions for purposes of this Data Processing Amendment.
5.2.2 Cloudmersive's Compliance with Instructions. As from the Full Activation Date (at the latest), Cloudmersive will comply with the instructions described in Section 5.2.1 (Customer's Instructions) (including with regard to data transfers) unless EU or EU Member State law to which Cloudmersive is subject requires other processing of Customer Personal Data by Cloudmersive, in which case Cloudmersive will inform Customer (unless that law prohibits Cloudmersive from doing so on important grounds of public interest) via the Notification Email Address. For clarity, Cloudmersive will not process Customer Personal Data for Advertising purposes or serve Advertising in the Services.
5.3. Additional Products. If Cloudmersive at its option makes any Additional Products available to Customer in accordance with the Additional Product Terms, and if Customer opts to install or use those Additional Products, the Services may allow those Additional Products to access Customer Personal Data as required for the interoperation of the Additional Products with the Services. For clarity, this Data Processing Amendment does not apply to the processing of personal data in connection with the provision of any Additional Products installed or used by Customer, including personal data transmitted to or from such Additional Products. Customer may use the functionality of the Services to enable or disable Additional Products, and is not required to use Additional Products in order to use the Services.
6.1. Cloudmersive will enable Customer and/or End Users to delete Customer Data during the applicable Term upon request by the Customer via Support https://account.cloudmersive.com/contact-support . Cloudmersive will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.
7.1. Cloudmersive's Security Measures, Controls and Assistance
7.1.1. Cloudmersive's Security Measures. Cloudmersive will implement and maintain technical and organizational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Appendix 2 (the "Security Measures"). Cloudmersive 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.
7.1.2. Security Compliance by Cloudmersive Staff. Cloudmersive will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Subprocessors to the extent applicable to their scope of performance, including ensuring that all persons authorized to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7.2. Data Incidents
7.2.1. Incident Notification. If Cloudmersive becomes aware of a Data Incident, Cloudmersive will: (a) notify Customer of the Data Incident promptly and without undue delay; and (b) promptly take reasonable steps to minimize harm and secure Customer Data.
7.2.2. Details of Data Incident. Notifications made pursuant to this section will describe, to the extent possible, details of the Data Incident, including steps taken to mitigate the potential risks and steps Cloudmersive recommends Customer take to address the Data Incident.
7.2.3. Delivery of Notification. Notification(s) of any Data Incident(s) will be delivered to the Notification Email Address or, at Cloudmersive's discretion, by direct communication (for example, by phone call or an in-person meeting). Customer is solely responsible for ensuring that the Notification Email Address is current and valid.
7.2.4. No Assessment of Customer Data by Cloudmersive. Cloudmersive will not assess the contents of Customer Data in order to identify information subject to any specific legal requirements. Without prejudice to Cloudmersive's obligations under this Section 7.2 (Data Incidents), Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Data Incident(s).
7.2.5. No Acknowledgement of Fault by Cloudmersive. Cloudmersive's notification of or response to a Data Incident under this Section 7.2 (Data Incidents) will not be construed as an acknowledgement by Cloudmersive of any fault or liability with respect to the Data Incident.
7.3. Customer's Security Responsibilities and Assessment
7.3.1. Customer's Security Responsibilities. Customer agrees that, without prejudice to Cloudmersive's obligations under Section 7.1 (Cloudmersive's Security Measures, Controls and Assistance) and Section 7.2 (Data Incidents):
(a) Customer is solely responsible for its use of the Services, including:
(i) making appropriate use of the Services and the Additional Security Controls to ensure a level of security appropriate to the risk in respect of the Customer Data;
(ii) securing the account authentication credentials, systems and devices Customer uses to access the Services; and
(iii) retaining copies of its Customer Data as appropriate; and
(b) Cloudmersive has no obligation to protect copies of Customer Data that Customer elects to store or transfer outside of Cloudmersive's and its Subprocessors' systems (for example, offline or on-premise storage), or to protect Customer Data by implementing or maintaining Additional Security Controls except to the extent Customer has opted to use them.
7.3.2. Customer's Security Assessment
(a) Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures, the Additional Security Controls and Cloudmersive's commitments under this Section 7 (Data Security) will meet Customer's needs, including with respect to any security obligations of Customer under the European Data Protection Legislation and/or Non-European Data Protection Legislation, as applicable.
(b) Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Cloudmersive as set out in Section 7.1.1 (Cloudmersive's Security Measures) provide a level of security appropriate to the risk in respect of the Customer Data.
9.1. Access; Rectification; Restricted Processing; Portability. During the applicable Term, Cloudmersive will, in a manner consistent with the functionality of the Services, enable Customer to access, rectify and restrict processing of Customer Data, including via the deletion functionality provided by Cloudmersive as described in Section 6.1 (Deletion During Term), and to export Customer Data.
9.2. Data Subject Requests
9.2.1. Customer's Responsibility for Requests. During the applicable Term, if Cloudmersive receives any request from a data subject in relation to Customer Personal Data, Cloudmersive will advise the data subject to submit his/her request to Customer, and Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Services.
9.2.2. Cloudmersive's Data Subject Request Assistance. Customer agrees that (taking into account the nature of the processing of Customer Personal Data) Cloudmersive will assist Customer in fulfilling any obligation to respond to requests by data subjects, including if applicable Customer's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR, by:
(a) complying with the commitments set out in Section 9.1 (Access; Rectification; Restricted Processing; Portability) and Section 9.2.1 (Customer's Responsibility for Requests).
10.1. Data Storage and Processing Facilities. Customer agrees that Cloudmersive may, subject to Section 10.2 (Transfers of Data Out of the EEA), store and process Customer Data in the United States and any other country in which Cloudmersive or any of its Subprocessors maintains facilities.
10.2. Transfers of Data Out of the EEA
10.2.1. Cloudmersive's Transfer Obligations. If the storage and/or processing of Customer Personal Data involves transfers of Customer Personal Data out of the EEA and the European Data Protection Legislation applies to the transfers of such data ("Transferred Personal Data") under any Agreement, Cloudmersive will, in relation to Transferred Personal Data under all Agreements:
(a) if requested to do so by Customer, ensure that Cloudmersive LLC as the data importer of the Transferred Personal Data enters into Model Contract Clauses with Customer as the data exporter of such data, and that the transfers are made in accordance with such Model Contract Clauses; and/or
(b) offer an Alternative Transfer Solution, ensure that the transfers are made in accordance with such Alternative Transfer Solution, and make information available to Customer about such Alternative Transfer Solution.
10.2.2 Customer's Transfer Obligations. In respect of Transferred Personal Data under any Agreement, Customer agrees that:
(a) if under the European Data Protection Legislation Cloudmersive reasonably requires Customer to enter into Model Contract Clauses in respect of such transfers, Customer will do so; and
(b) if under the European Data Protection Legislation Cloudmersive reasonably requires Customer to use an Alternative Transfer Solution offered by Cloudmersive, and reasonably requests that Customer take any action (which may include execution of documents) strictly required to give full effect to such solution, Customer will do so.
10.3. Data Center Information. Information about the locations of Cloudmersive data centers is available upon request from Support at https://account.cloudmersive.com/contact-support
10.4 Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA), Cloudmersive will, notwithstanding any term to the contrary in the applicable Agreement, ensure that any disclosure of Customer's Confidential Information containing personal data, and any notifications relating to any such disclosures, will be made in accordance with such Model Contract Clauses.
11.1. Consent to Subprocessor Engagement. Customer specifically authorizes the engagement as Subprocessors by Cloudmersive. In addition, Customer generally authorizes the engagement as Subprocessors of any other third parties ("New Third Party Subprocessors"). If Customer has entered into Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer's prior written consent to the subcontracting by Cloudmersive, LLC of the processing of Customer Data if such consent is required under the Model Contract Clauses.
11.2. Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available upon request from Support at https://account.cloudmersive.com/contact-support
11.3. Requirements for Subprocessor Engagement. When engaging any Subprocessor, Cloudmersive will:
(a) ensure via a contract or terms that:
(i) the Subprocessor only accesses and uses Customer Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the applicable Agreement (including this Data Processing Amendment) and any Model Contract Clauses entered into or Alternative Transfer Solution adopted by Cloudmersive as described in Section 10.2 (Transfers of Data Out of the EEA); and
(ii) if the GDPR applies to the processing of Customer Personal Data, the data protection obligations set out in Article 28(3) of the GDPR, as described in this Data Processing Amendment, are imposed on the Subprocessor
WHEN PERMITTED BY LAW, CLOUDMERSIVE, AND CLOUDMERSIVE'S SUPPLIERS AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA; FINANCIAL LOSSES; OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF CLOUDMERSIVE, AND ITS SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIM UNDER THE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE APPLICABLE APIS (OR, IF WE CHOOSE, TO SUPPLYING YOU THE APIS AGAIN) DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
IN ALL CASES, CLOUDMERSIVE, AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY EXPENSE, LOSS, OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
Cloudmersive's provision of the Services and related technical support to Customer.
The applicable Term plus the period from expiry of such Term until deletion of all Customer Data by Cloudmersive in accordance with the Data Processing Amendment.
Cloudmersive will process Customer Personal Data submitted, stored, sent or received by Customer, its Affiliates or End Users via the Services for the purposes of providing the Services and related technical support to Customer in accordance with the Data Processing Amendment.
Personal data submitted, stored, sent or received by Customer, its Affiliates or End Users via the Services may include the following categories of data: user IDs, email, documents, presentations, images, calendar entries, tasks and other data.
Personal data submitted, stored, sent or received via the Services may concern the following categories of data subjects: End Users including Customer's employees and contractors; the personnel of Customer's customers, suppliers and subcontractors; and any other person who transmits data via the Services, including individuals collaborating and communicating with End Users.
As from the Amendment Effective Date, Cloudmersive will implement and maintain the Security Measures set out in this Appendix 2 to the Data Processing Amendment. Cloudmersive may update or modify such 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.
(a) Data Centers
Infrastructure. Cloudmersive stores all production data in physically secure data centers.
Power. The data center electrical power systems are designed to be redundant and maintainable without impact to continuous operations in most cases, 24 hours a day, and 7 days a week.
Server Operating Systems. Cloudmersive servers use Windows Server and a Linux based implementation customized for the application environment.
(b) Networks & Transmission
Encryption Technologies. Cloudmersive makes HTTPS encryption (also referred to as SSL or TLS connection) available.
(a) Site Controls.
On-site Data Center Security Operation. Cloudmersive's data centers maintain an on-site security operation responsible for all physical data center security functions 24 hours a day, 7 days a week. The on-site security operation personnel monitor Closed Circuit TV (CCTV) cameras and all alarm systems. On-site Security operation personnel perform internal and external patrols of the data center regularly.
(b) Access Control
Access Control and Privilege Management. Customer's Administrators and End Users must authenticate themselves via a central authentication system or via a single sign on system in order to use the Services. Each application checks credentials in order to allow the display of data to an authorized End User or authorized Administrator.
(a) Data Storage, Isolation & Authentication
Cloudmersive stores data in a multi-tenant environment on Cloudmersive-owned servers. Data, the Services database and file system architecture may be replicated between multiple geographically dispersed data centers. Cloudmersive logically isolates data on a per End User basis at the application layer. Cloudmersive logically isolates each Customer's data, and logically separates each End User's data from the data of other End Users, and data for an authenticated End User will not be displayed to another End User (unless the former End User or an Administrator allows the data to be shared). A central authentication system is used across all Services to increase uniform security of data.
Before onboarding Subprocessors, Cloudmersive conducts an audit or review of the security and privacy practices of Subprocessors to ensure Subprocessors provide a level of security and privacy appropriate to their access to data and the scope of the services they are engaged to provide. Once Cloudmersive has assessed the risks presented by the Subprocessor, the Subprocessor is required to enter into appropriate security, confidentiality and privacy terms.
Accept this amendment agreement by contacting your account team. This agreement must be accepted to apply.