Voomly Data Processing Addendum

Last Updated: March 31, 2023

THIS DATA PROCESSING ADDENDUM (this “DPA”) supplements and is a part of the Voomly Subscriber Terms of Service entered into between Voomly, LLC, the owner and operator of the Voomly platform (“Voomly”, “we”, “us” and “our”), and the individual or entity who purchased subscription rights to the Voomly platform via the Subscriber Terms of Service (“Subscriber”, “you” and “your”). Certain words and phrases in this DPA have special meanings that are provided either where they first appear as indicated by bold text, or in Section 6, as indicated by text link where they first appear. This English language version controls regardless of any translation. The definitions ascribed to the defined words shall be interpreted as defined terms regardless of capitalization.

1.       SCOPE AND PURPOSE.

1.1     Subscriber Personal Data. The Voomly platform provides our subscribers with the ability to build and sell video courses and other similar services to end users. When you first subscribed to the Voomly Platform, you agreed to our Subscriber Terms of Service and allowed us to collect from you certain subscription-related data, including some limited Personal Data such as your name, email address.We act as the Controller of that Subscriber Personal Data.

1.2     End User Personal Data. After you have subscribed to our Voomly Platform and used it to design your courses and their sales pages,you then put those courses to work, generating leads and sales. In doing so, you may collect data from your own end users including whatever Personal Data you feel is needed for your business. You act as the Controller of that End User Personal Data you collected. We, in turn, act as your Processor when you use the feature of our Voomly Platform that allows you to store End User Personal Data on our systems.

1.3     Purpose; Compliance With Data Protection Laws. The two-fold purpose of this DPA is to supplement the Subscriber Terms of Service by establishing the parties’ respective rights and obligations under applicable Data Protection Laws with respect to: (a) the Subscriber Personal Data of which you are the data subject and with respect to which we act as controller; and (b) where relevant the End User Personal Data for which your end users are the data subjects, you act as Controller and we act as your Processor.

2.       CONTROLLER OBLIGATIONS.

2.1     Independent Controllers. Unless otherwise agreed by the parties, when Subscriber processes Personal Data as a Controller pursuant to the terms of the DPA, Voomly LLC and Subscriber process Personal Data as independent Controllers. Each Controller is solely responsible for its own obligations as a Controller, as required under the applicable Data Privacy Law. To the extent any investigation or action is commenced against us as a result of your processing, sharing, or transferring of End User Personal Data (except if caused by our failure to fulfill our obligations under Section 3 of this DPA), you will indemnify, defend and hold us and our agents and representatives harmless.

2.2     International Transfers. In our role as a Controller of Subscriber Personal Data, you acknowledge that we and our Processors may maintain data processing operations in jurisdictions that are outside of your country of residence. Where we and our Processors process Subscriber Personal Data relating to residents of the European Economic Area (EEA), United Kingdom, Switzerland, and other countries in which applicable Data Protection Laws require a similar data transfer agreement, the parties as Controllers will enter into the Controller-to-Controller Standard Contractual Clauses, attached hereto as Annex 1 and incorporated into this DPA.

3.       OUR PROCESSOR OBLIGATIONS.

We act as your Processor when you use the feature of our Voomly Platform that allows you to store End User Personal Data on our systems. The subject-matter of our processing is the End User Personal Data you provide to us. The nature and purpose of our processing is limited to storage for retrieval by you. We do not typically conduct read-access to End User Personal Data in connection with the provision of the Voomly Platform. All of our processing of End User Personal Data further adheres to the following obligations:

3.1     Appropriate measures. We will implement appropriate technical and organizational measures in such a manner that our processing on your behalf will meet the requirements of applicable law.

3.2     Appointment of Subprocessors. You agree that we may appoint subprocessors to assist with providing our products and services, including without limitation processing Subscriber Personal Data. We will maintain an updated list of the names and location of all subprocessors used for processing Subscriber Personal Data under this DPA. We will provide a list of all subprocessors upon request. In the event you object to a subprocessor in accordance with the terms of this DPA, you must immediately provide your objection to us in writing. In such event, we will allow you to terminate the Terms and Conditions of Use & Sale immediately.

3.3     Processing Obligations. In our role as a Processor of End User Personal Data, we specifically will:

a.   process End User Personal Data only on your documented instructions solely for the purpose of providing services in the context of the direct business relationship between us and you, including with regard to transfers to a third country or an international organization, unless our actions are required by applicable law to which we are subject; in such a case we will inform your before processing, unless prohibited by that law;

b.   ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

c.   take all measures required under GDPR Article 32, and corresponding requirements under other applicable Data Protection Laws;

d.   respect the conditions referred to in Sections 3.2 and 3.4 for engaging another Processor;

e.   taking into account the nature of the processing, assist you by appropriate technical and organizational measures, insofar as possible, in fulfilling your obligation to respond to requests for exercising the data subject's rights under applicable law;

f.   assist you in ensuring compliance with your obligations under GDPR Articles 32 to 36, and corresponding requirements under other applicable Data Protection Laws, taking into account the nature of processing and the information available to us;

g.   at your election, delete or return all End User Personal Data to you at end of our relationship under the Subscriber Terms of Service, and delete existing copies unless applicable law requires storage of the personal data; and

h.   make available to you all information necessary to demonstrate our compliance with this DPA and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you.

We will immediately inform you of our inability to comply with your instructions or applicable Data Protection Laws, or if, in our opinion, an instruction you gave us infringes applicable Data Protection Laws.

3.4     Subprocessors. If we engage a subprocessor to carry out specific processing activities on your behalf, the same obligations in this DPA will be imposed on that subprocessor by way of a contract or other legal act meeting the requirements of applicable Data Protection Laws, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of applicable Data Protection Laws. If the subprocessor breaches those obligations, we will be responsible to you.

3.5     End User Requests. We will, to the extent legally permitted, promptly notify you if an End User seeks to exercise its data subject access and related rights under applicable law through us instead of you, and we will reasonably cooperate with you to fulfill your obligations provided that you are responsible for any reasonable costs arising therefrom.

3.6     Breach Notification. We will notify you without undue delay after becoming aware that there has been a breach of the security of our systems leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the End User Personal Data transmitted, stored or otherwise processed by us. Such notification will include that information a Processor must provide to a Controller under GDPR Article 33(3) or other applicable Data Protection Laws to the extent such information is reasonably available to Voomly.

3.7     International Transfers. When you store End User Personal Data on our systems, it is automatically transferred outside of your country of residence to the United States. Where we process or permit our subprocessor to process End User Personal Data relating to a resident of the EEA, Switzerland, United Kingdom, or other country in which applicable Data Protection Laws require a similar data transfer agreement, we will comply with the requirements of the Controller-to-Processor Standard Contractual Clauses, attached hereto as Annex 2 and incorporated into this DPA.

3.8     Personal Data Use. Any disclosure of End User Personal Data by you as Controller to us as Processor does not constitute a sale of End User Personal Data for valuable consideration. In our role as a Processor, we will not (1) sell, retain, use or disclose End User Personal Data for any purpose other than for the specific purposes for providing the services, as set forth in this DPA and the other applicable terms, or (2) combine End User Personal Data for which you are Controller with Personal data for which a third party is Controller, unless otherwise instructed by you

4.       PRECEDENCE; BINDING CONTRACT.

Conflicts between the Subscriber Terms of Service and/or our general Privacy Statement on the one hand, and this DPA on the other hand, with respect to a party’s rights or obligations governing, related to, or arising out of Subscriber Personal Data and End User Personal Data shall be resolved in favor of this DPA. By continuing to use the Voomly Platform following the Effective Date of this DPA, Subscriber will have affirmatively manifested its intent to be bound to the terms and subject to the conditions of this DPA.

5.       GLOSSARY; INTERPRETATION.

"CCPA” means the California Consumer Privacy Act and its implementing regulations, as each are amended from time to time.

Voomly Platform” means the Voomly platform owned and operated by Voomly, LLC and described here.

"Controller" has the meaning given to it in applicable Data Protection Laws, and in general means a person who (alone or with others) determines the purposes for which and the manner in which Personal Data are to be processed. For purposes of the CCPA, that term and its meaning are, wherever used in this DPA, substituted with the term “Business” as defined in the CCPA.

"Data subject" has the meaning given to it in applicable Data Protection Laws, except that, for purposes of the CCPA, that term and its meaning are, wherever used in this DPA, substituted with the term “Consumer” as defined in the CCPA.

Data Protection Laws” means laws and regulations applicable to the collection, use, storage and transfer of Subscriber Personal Data or End User Personal Data, including, but not limited to, the GDPR, CCPA, LGPD, and UK DPA.

End user” means any natural person from whom you collect personal data including visitors to your web sites and the actual and prospective customers of your goods and services.

End User Personal Data” means certain personal data you collect from the prospective and actual customers of the goods and services you promote using web sites created with our Voomly Platform, as described here.

Standard Contractual Clauses“ means the Standard Contractual Clauses under the GDPR for data transfers from controllers or processors in the EU/EEA (or otherwise subject to the GDPR) to controllers or processors established outside the EU/EEA (and not subject to the GDPR) issued by the European Commission on 4 June, 2021, including where applicable the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (“UK Addendum”). The Standard Contractual Clauses are incorporated into this Addendum. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses should prevail. See https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc_en for current information on clauses. See also Annex 1 & 2, which are hereby incorporated into this DPA by reference.

UK DPA” means the United Kingdom Data Protection Act 2018, as amended.

GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 and all national legislation implementing or supplementing it, as the foregoing are amended from time to time.

LGPD” means the Brazilian Lei Geral de Proteção de Dados Pessoais (General Data Protection Law).

Personal Data" has the meaning given to it in applicable Data Protection Laws except that, for purposes of the CCPA, that term and its meaning are, wherever used in this DPA, substituted with the term “Personal information” as defined in the CCPA.

Process” / "Processing" has the meaning given to it in applicable Data Protection Laws, and in general means any person, other than an employee of the Controller, who processes Personal Data on behalf of the Controller.

"Processor" has the meaning given to it in applicable Data Protection Laws.

Sell” has the meaning given to it in the CCPA.

Subscriber Personal Data” means certain personal data we collect from you and your workforce when you subscribe to our Voomly Platform specifically described here.

Subscriber Terms of Service” means the Voomly Terms of Service found here.

Subprocessor(s)” means any third party processor engaged by Processor, including entities and affiliates of Processor, who receive personal data from Processor for processing on behalf of the Controller and in accordance with the Controller’s instructions (as communicated by Processor) and the terms of its written subcontract.

END OF DATA PROCESSING ADDENDUM

ANNEX 1

Standard Contractual Clauses (Controller)

For the purposes of Article 28(7) of Regulation (EU) 2016/679 for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

The entity identified as “Subscriber”, “you” and “your” in the DPA
(the “data exporter”)

and

Voomly, LLC
3443 W Bavaria St.
Eagle, ID 83616
(the “data importer”)

each a “party”; together “the parties”

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix A.

SECTION I

Clause 1

Purpose and scope

a.   The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) for the transfer of personal data to a third country.

b.   The Parties:

i.    the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Appendix A, Annex I.A. (hereinafter each “data exporter”), and

ii.   the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Appendix A, Annex I.A. (hereinafter each “data importer”) have agreed to these standard contractual clauses (hereinafter: “Clauses”).

c.   These Clauses apply with respect to the transfer of personal data as specified in Appendix A, Annex I.B.

d.   The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

a.   These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

b.   These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

a.   Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

i.      Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

ii.     Clause 8 - Clause 8.1(b), 8.9(a), (c), (d) and (e);

iii.    Clause 9 - Clause 9(a), (c), (d) and (e);

iv.    Clause 12 - Clause 12(a), (d) and (f);

v.     Clause 13;

vi.    Clause 15.1(c), (d) and (e);

viii.  Clause 16(e);

ix.    Clause 18 - Clause 18(a) and (b)

b.   Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

a.   Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

b.   These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

c.   These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Appendix A, Annex I.B.

Clause 7 - Optional

Docking Clause

The docking clause option under Clause 7 shall not apply.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.

8.1       Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Appendix A, Annex I.B. It may only process the personal data for another purpose:

i.      where it has obtained the data subject’s prior consent;

ii.     where necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

iii.    where necessary in order to protect the vital interests of the data subject or of another natural person.

8.2       Transparency

a.   In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:

i.       of its identity and contact details;

ii.      of the categories of personal data processed;

iii.     of the right to obtain a copy of these Clauses;

iv.     where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.

b.   Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.

c.   On request, the Parties shall make a copy of these Clauses, including Appendix A as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.

d.   Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.3       Accuracy and data minimisation

a.   Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.

b.   If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.

c.   The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.

8.4       Storage limitation

The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organizational measures to ensure compliance with this obligation, including erasure or anonymisation of the data and all back-ups at the end of the retention period.

8.5       Security of processing

a.   The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.

b.   The Parties have agreed on the technical and organizational measures set out in Appendix A, Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

c.   The data importer shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

d.   In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its possible adverse effects.

e.   In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain (i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), (ii) its likely consequences, (iii) the measures taken or proposed to address the breach, and (iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.

f.   In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points (ii) to (iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.

g.   The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.

8.6       Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (hereinafter “sensitive data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.

8.7       Onward transfers

The data importer shall not disclose the personal data to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:

i.       it is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

ii.      the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing in question;

iii.     the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;

iv.     it is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings;

v.      it is necessary in order to protect the vital interests of the data subject or of another natural person; or

vi.     where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.8       Processing under the authority of the data importer

The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.

8.9       Documentation and compliance

a.   Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.

b.   The data importer shall make such documentation available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

This clause is not applicable to this Module (Controller-Controller) of the Standard Contractual Clauses.

Clause 10

Data subject rights

a.   The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.

b.   In particular, upon request by the data subject the data importer shall, free of charge:

i.       provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);

ii.      rectify inaccurate or incomplete data concerning the data subject;

iii.     erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.

c.   Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.

d.   The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter “automated decision”), which would produce legal effects concerning the data subject or similarly significantly affect him / her, unless with the explicit consent of the data subject or if authorized to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:

i.       inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and

ii.      implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.

e.   Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.

f.    The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.

g.   If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.

Clause 11

Redress

a.   The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

b.   In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

c.   Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

i.       lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

ii.      refer the dispute to the competent courts within the meaning of Clause 18.

d.   The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

e.   The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

f.    The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

a.   Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

b.   Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under Regulation (EU) 2016/679.

c.   Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

d.   The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

e.   The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.

Clause 13

Supervision

a.   Where the data exporter is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Appendix A, Annex I.C, shall act as competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Appendix A, Annex I.C, shall act as competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behavior is monitored, are located, as indicated in Appendix A, Annex I.C, shall act as competent supervisory authority.

b.   The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

a.   The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

b.   The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

i.       the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

ii.      the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

iii.     any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

c.   The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

d.   The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

e.   The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a)

f.    Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1        Notification

a.   The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

i.       receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

ii.      becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

b.   If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

c.   Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

d.   The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

e.    Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2       Review of legality and data minimisation

a.   The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

b.   The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

c.   The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

a.   The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

b.   In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

c.   The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

i.        the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

ii.       the data importer is in substantial or persistent breach of these Clauses; or

iii.      the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses. In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

d.   Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

e.   Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Netherlands.

Clause 18

Choice of forum and jurisdiction

a.   Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

b.   The Parties agree that those shall be the courts of the Netherlands.

c.   A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

d.   The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX A, ANNEX I

A.       LIST OF PARTIES

Data exporter(s):

The data exporter is the entity identified as “Subscriber”, “you” and “your” in the DPA.

Activities relevant to the data transferred under these Clauses:
Voomly, LLC customers subscribe to the Voomly Platform, and agree to the Voomly, LLC Subscriber Terms of Service, providing limited Personal Data such as their name, email address and payment information.

Role (controller/processor): Controller

Data importer(s):

Voomly, LLC
3443 W Bavaria St.
Eagle, ID 83616
compliance@voomly.com

Activities relevant to the data transferred under these Clauses:
The Voomly platform provides our subscribers with the ability to build and sell video courses and other similar services to end users. When Subscribers first subscribe to the Voomly Platform, they agree to our Subscriber Terms of Service and allow us to collect certain subscription-related data, including some limited Personal Data such as their name, email address and payment information. Voomly, LLC acts as the Controller of that Subscriber Personal Data.

Role (controller/processor): Controller

B.       DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred:

The personal data transferred concern the following categories of data subjects:

The visitors to, and users of, data importer’s online data importer’s customers; current members of our workforce and those who apply for posted jobs; and third party vendors and business partners.

Categories of personal data transferred

The personal data transferred concern the following categories of data:

The information that’s collected automatically from each visitor, such as device operating system; and personal information voluntarily provided to data importer or that is collected automatically such as name, email address, and IP address.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures. Not applicable.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

The data is transferred on a continuous basis.

Nature of the processing
The Voomly platform provides our subscribers with the ability to build and sell video courses and other similar services to end users. When Subscribers first subscribe to the Voomly Platform, they agree to the data importer’s Subscriber Terms of Service and permit the collection of certain subscription-related data, including some limited Personal Data such as the Subscriber’s name, email address and payment information.

Purpose(s) of the data transfer and further processing

The transfer is made for the following purposes:

To perform the services as outlined in the Voomly Subscriber Terms of Service.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

Except where required by law, data will be retained by data importer for a period of 2 years after a subscriber has ceased being a customer of Voomly.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

The data importer may appoint sub-processors to assist with providing its products and services, including without limitation processing Subscriber Personal Data. The subject matter of the sub-processing is the Subscriber Personal Data provided to us for purposes of performing the services outlined in the Voomly Terms of Service. The nature and purpose of the sub-processing is limited to storage for retrieval by the data exporter. The duration of sub-processing will be consistent with the data importer’s retention period as described above.

The data importer has completed and documented a data transfer impact assessment in accordance with Clause 14 above, which will be made available to a relevant and competent Supervisory Authority upon request.

C.       COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13
The Competent Supervisory Authority will be determined on a case by case basis subject to the circumstances of the data subjects involved in the matter.

APPENDIX A, ANNEX II - HOW WE PROTECT YOUR DATA

Data Privacy and protection are of paramount importance at Voomly, following the measures we use to ensure your data is protected, private and accurate.

1.    Data Encryption:

a.        When Data is not being used, it is considered at rest. All data at rest on the Voomly servers is encrypted with the latest encryption technology.

b.        When Data travels through the internet and is transmitted from our servers to other machines for access and use, that data is considered to be in transit. All data is encrypted while in transit from our servers or our caches.

2.   Backups:

a.        In order to prevent any data loss, Voomly conducts continuous backups to ensure that in the event of a data-related incident, data can be restored.

3.   High Availability:

a.        Voomly hosts our servers on both the Google Cloud and the Amazon Cloud. Hosting providers maintain significant physical & environmental security protections. These cloud services are configured by our infrastructure team to ensure maximum up time, and availability of our servers.

4.   Security, Infrastructure and Database Administration.

a.        Aside from our development team, we employ numerous engineers in the security, infrastructure, and operations space to ensure that the infrastructure is architected properly as well as respond to any issues within minutes in a 24/7/365 system.

b.        Voomly completes an annual security audit of its facilities, networks, and systems

5.   Incident Response.

a.        As part of our PCI DSS Level 1 Certification Voomly has implemented, tested, and maintains an incident response plan that allows us to respond to any type of issue to ensure business continuity. The incident response plan currently covers the following areas:

i.        Site Down or not functioning correctly to the detriment of all users;

ii.       Security Incidents; and

iii.      Global Pandemic.

6.   Bug Escalation:

a.        As part of our ability to service our customers, we also have procedures in place to triage, and escalate software deficiencies of a higher priority nature. This allows us to react quickly if our customers are not able to collect data or revenue from their customers.

7.   Access Control:

a.        Voomly maintains a list of all authorized users who have access to all backend systems. This list is updated and reviewed on a regular basis to ensure only Voomly employees who require access, have access. Access activity is logged in centralized logging infrastructure. Authorized employees accessing data processing systems are assigned dedicated user IDs for authentication purposes. Voomly maintains a password policy which requires password complexity, password expiration, and prohibits the sharing of passwords. Inactive sessions are subject to automatic timeout, and accounts are locked after multiple sequential failed login attempts.

8.   MFA: Multi Factor Authentication, in order for our engineers to gain access to the systems where sensitive data is stored, we’ve implemented multi factor authentication at each of these systems.

9.   Data Privacy and Security Policies and Procedures: Voomly maintains formal Information Security, and Data Protection, Classification, Retention and Destruction Policies covering collection, storage, access, processing, and transmission of company and customer data.

APPENDIX B - International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (“UK Addendum”)

Note: This UK Addendum to the EU Commission Standard Contractual Clauses applies solely to Subscribers located in the United Kingdom.

Part 1: Tables

Table 1: Parties

Start date

April 28, 2022

The Parties

Exporter (who sends the Restricted Transfer)

Importer (who receives the Restricted Transfer)

Parties’ details

Full legal name: The individual or entity located in the United Kingdom who purchased subscription rights to the Voomly platform via the Voomly Subscriber Terms of Service, identified as “Subscriber”, “you and “your” in the Data Processing Addendum to the Voomly Subscriber Terms of Service

Trading name (if different): Main address (if a company registered address): Subscriber company address as recorded in Voomly information systems

Official registration number (if any) (company number or similar identifier): Where provided by Subscriber, as recorded in Voomly’s subprocessor information systems

Full legal name: Voomly, LLC Trading name (if different): dba Voomly, Doodly, Toonly, Talkia, PYKS, Automatic Script, Editly, People Builder, Umbrella, Claymately, Courserate, as applicable.

Main address (if a company registered address): 3443 W Bavaria Street, Eagle, ID 83616

Official registration number (if any) (company number or similar identifier): N/A


Key Contact

Full Name (optional): Subscriber account owner name as recorded in Voomly information systems

Job Title: N/A

Contact details including email: Subscriber email address as recorded in Voomly information systems


Full Name (optional): Kelsie G.

Job Title: Compliance Director

Contact details including email: compliance@voomly.com

Full Name (optional): Kelsie G.

Job Title: Compliance Director

Contact details including email: compliance@voomly.
com

Signature (if required for the purposes of Section ‎2)

Per the terms of the Voomly Subscriber Terms of Service and the accompanying Data Processing Addendum (“DPA”, of which this UK Addendum is a part), by continuing to use the Voomly Platform following the Effective Date of the DPA Subscriber will have affirmatively manifested its intent to be bound to the terms and subject to the conditions of the DPA, including this UK Addendum.

Per the terms of the Voomly Subscriber Terms of Service, the https://www.voomly.com/voomly-terms-of-service together with the Voomly PRIVACY STATEMENT AND DATA PROCESSING ADDENDUM herein (of which this UK Addendum is a part) form a legally binding agreement between the Subscriber and the Subscriber’s business, and Voomly.

Per the terms of the
Voomly Subscriber
Terms of Service, the https://www.voomly.com/voomly-terms-of-service together with the Voomly PRIVACY STATEMENT AND DATA PROCESSING ADDENDUM herein (of which this UK Addendum is a part) form a legally binding agreement between the Subscriber and the Subscriber’s business, and Voomly.

Table 2: Selected SCCs, Modules and Selected Clauses

Addendum EU SCCs

☐ The version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information:

Date:      

Reference (if any):      

Other identifier (if any):      

Or

☒ the Approved EU SCCs, including the Appendix Information and with only the following modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the purposes of this Addendum:

Module

Mo
du
le

Module in operation

Mo
dule
in
ope
rati
on

Clause 7 (Docking Clause)

Cla
use 7
(Do
cki
ng
Cla
use)

Clause 11
(Option)

Clause 11
(Op
tion)

Clause 9a (Prior Authorisation or General Authorisation)

Clause
9a (Prior Autho
risa
tion
or Gene
ral Autho
risa
tion)

Clause 9a (Time period)

Clause 9a (Time period)

Is personal data received from the Importer combined with personal data collected by the Exporter?

Is personal data received from the Importer combined with personal data collected by the Exporter?

1

x

x

x

x

x

x

2

x

x

x

x

x

x

3

x

x

x

x

x

x

4

x

x

x

x

x

x

Table 3: Appendix Information

Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Annex 1A: List of Parties: See list of Parties in Annex IA to Approved EU SCCs

Annex 1B: Description of Transfer: See description of transfer in Annex IB to Approved EU SCCs

Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: See Annex II to Approved EU SCCs

Annex III: List of Sub processors (Modules 2 and 3 only): N/A

Table 4: Ending this Addendum when the Approved Addendum Changes

Ending this Addendum when the Approved Addendum changes

Which Parties may end this Addendum as set out in Section ‎19:

☒ Importer

☐ Exporter

☐ Neither Party


Part 2: Mandatory Clauses

Entering into this Addendum

1.   Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.

2.   Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum

3.   Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

Addendum

This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.

Addendum EU SCCs

The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.

Appendix Information

As set out in Table ‎3.

Appropriate Safeguards

The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.

Approved Addendum

The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎18.

Approved EU SCCs

The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.

ICO

The Information Commissioner.

Restricted Transfer

A transfer which is covered by Chapter V of the UK GDPR.

UK

The United Kingdom of Great Britain and Northern Ireland.

UK Data Protection Laws

All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.

UK GDPR

As defined in section 3 of the Data Protection Act 2018.

4.   This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfills the Parties’ obligation to provide the Appropriate Safeguards.

5.   If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.

6.   If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.

7.   If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.

8.   Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9.   Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section ‎10 will prevail.

10.  Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.

11.   Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12.   This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:

a.        together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;

b.        Sections ‎9 to ‎11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and

c.        this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.

13.   Unless the Parties have agreed alternative amendments which meet the requirements of Section ‎12, the provisions of Section ‎15 will apply.

14.   No amendments to the Approved EU SCCs other than to meet the requirements of Section ‎12 may be made.

15.   The following amendments to the Addendum EU SCCs (for the purpose of Section ‎12) are made:

a.        References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;

b.        In Clause 2, delete the words:

“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;

c.        Clause 6 (Description of the transfer(s)) is replaced with:

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

d.        Clause 8.7(i) of Module 1 is replaced with:

“it is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

e.        Clause 8.8(i) of Modules 2 and 3 is replaced with:

“the onward transfer is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”

f.         References to “Regulation (EU) 2016/679”, “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 (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;

g.        References to Regulation (EU) 2018/1725 are removed;

h.        References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;

i.         The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;

j.         Clause 13(a) and Part C of Annex I are not used;

k.        The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;

l.         In Clause 16(e), subsection (i) is replaced with:

“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;

m.       Clause 17 is replaced with:

“These Clauses are governed by the laws of England and Wales.”;

n.        Clause 18 is replaced with:

“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and

o.        The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

16.   The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.

17.    If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

18.    From time to time, the ICO may issue a revised Approved Addendum which:

a.         makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or

b.         reflects changes to UK Data Protection Laws;

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

19.   If the ICO issues a revised Approved Addendum under Section ‎18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:

a.         its direct costs of performing its obligations under the Addendum; and/or

b.         its risk under the Addendum, and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

20.   The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

ANNEX 2

Standard Contractual Clauses (Processor)

For the purposes of Article 28(7) of Regulation (EU) 2016/679 for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

The entity identified as “Subscriber”, “you” and “your” in the DPA
(the “data exporter”)

and

Voomly, LLC
3443 W Bavaria St.
Eagle, ID 83616
(the “data importer”)

each a “party”; together “the parties”

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix B.

SECTION I

Clause 1

Purpose and scope

a.   The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) for the transfer of personal data to a third country.

b.   The Parties:

i.    the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Appendix B, Annex I.A. (hereinafter each “data exporter”), and

ii.   the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Appendix B, Annex I.A. (hereinafter each “data importer”) have agreed to these standard contractual clauses (hereinafter: “Clauses”).

c.   These Clauses apply with respect to the transfer of personal data as specified in Appendix B, Annex I.B.

d.   The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

a.   These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

b.   These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

c.   Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

i.      Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

ii.     Clause 8 - Clause 8.1(b), 8.9(a), (c), (d) and (e);

iii.    Clause 9 - Clause 9(a), (c), (d) and (e);

iv.    Clause 12 - Clause 12(a), (d) and (f);

v.     Clause 13;

vi.    Clause 15.1(c), (d) and (e);

vii.   Clause 16(e);

viii.  Clause 18 - Clause 18(a) and (b)

d.   Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

a.   Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

b.   These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

c.    These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Appendix B, Annex I.B.

Clause 7 - Optional

Docking Clause

The docking clause option under Clause 7 shall not apply.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.

8.1       Instructions

a.   The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

b.   The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2       Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Appendix B, Annex I.B, unless on further instructions from the data exporter.

8.3       Transparency

On request, the data exporter shall make a copy of these Clauses, including Appendix B as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Appendix B, Annex II and personal data, the data exporter may redact part of the text of Appendix B to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4       Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5       Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Appendix B, Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6       Security of processing

a.   The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational measures specified in Appendix B, Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

b.   The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

c.   In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

d.   The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7       Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Appendix B, Annex I.B.

8.8       Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

i.      the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

ii.     the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

iii.    the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

iv.    the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9       Documentation and compliance

a.   The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

b.   The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

c.   The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

d.   The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

e.   The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

a.   The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least ten (10) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

b.   Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

c.    The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

d.    The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfill its obligations under that contract. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

a.   The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.

b.   The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Appendix B, Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

c.    In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

a.   The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

b.   In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

c.    Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

i.      lodge a complaint with the supervisory