This ICEFLO Data Processing Agreement (“DPA”) reflects the parties’ agreement with respect to the Processing of Personal Data by ICEFLO on behalf of Customer in connection with the ICEFLO Subscription Services under the Customer Terms of Service between ICEFLO and Customer (the “Agreement”).
This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement, an Order or an executed amendment to the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA shall take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.
We periodically update these terms by posting a revised copy on our website. If you have an active ICEFLO subscription, we will let you know when we do via email or via in-app notification.
The term of this DPA shall follow the term of the Agreement. Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.
“California Personal Information” means Personal Data that is subject to the protection of the CCPA.
"CCPA" means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018).
"Consumer", "Business", "Sell" and "Service Provider" shall have the meanings given to them in the CCPA.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Data Protection Law” means all applicable legislation relating to data protection and privacy including without limitation the CCPA, EU Data Protection Directive 95/46/EC. and all local laws and regulations which amend or replace any of them, including the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time. The terms “process”, “processes” and “processed” will be construed accordingly.
“Data Subject” means the individual to whom Personal Data relates.
"Europe" means the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.
“European Data” means Personal Data that is subject to the protection of European Data Protection Laws.
"European Data Protection Laws" means data protection laws applicable in Europe, including:
(i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ("GDPR");
(ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and
(iii) applicable national implementations of (i) and (ii); or (iii) in respect of the United Kingdom, any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the United Kingdom leaving the European Union; and
(iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.
“GDPR” means the General Data Protection 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.
“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
"Permitted Affiliates" means any of Customer's Affiliates that:
(i) are permitted to use the Subscription Services pursuant to the Agreement, but have not signed their own separate agreement with ICEFLO and are not a “Customer” as defined under the Agreement,
(ii) qualify as a Controller of Personal Data Processed by ICEFLO, and (iii) are subject to European Data Protection Laws.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by ICEFLO and/or its Sub-Processors in connection with the provision of the Subscription Services. "Personal Data Breach" shall not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
"Privacy Shield" means the EU-U.S. and Swiss-US Privacy Shield self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to its Decision of July, 12 2016 and by the Swiss Federal Council on January 11, 2017 respectively.
"Privacy Shield Principles" means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision of July, 12 2016.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses” means the standard contractual clauses for Processors approved pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010.
“Sub-Processor” means any Processor engaged by ICEFLO or its Affiliates to assist in fulfilling ICEFLO's obligations with respect to the provision of the Subscription Services under the Agreement. Sub-Processors may include third parties or ICEFLO Affiliates but shall exclude any ICEFLO employee or consultant.
ICEFLO will Process Personal Data as necessary to provide the Subscription Services pursuant to the Agreement, as further specified in the Order Form, and as further instructed by Customer in its use of the Subscription Services.
Controller may submit Personal Data to the Subscription Service, the extent of which is determined and controlled by Controller in its sole discretion, and which may include, but is not limited to Controller’s Contacts and other end users including Controller’s employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects also include individuals attempting to communicate with or transfer Personal Data to the Controller’s end users.
ICEFLO collects, stores and processes electronic data submitted, stored, sent, or received by the Controller, or the Controller’s end users, via the Subscription Service (as defined in the ICEFLO Customer Terms of Service), the extent of which is determined and controlled by the Customer in its sole discretion. Representative personal data may include but is not limited to the following:
The parties do not anticipate the transfer of special categories of data.
Controllers are responsible for defining their own Acceptable Use Policy, explicitly defining authorised and prohibited usage, devices and data that may be stored within the ICEFLO solution.
The subject-matter of Processing of Personal Data by Processor is the provision of the services to the Controller that involves the Processing of Personal Data. Personal Data will be subject to those Processing activities as may be specified in the Agreement and an Order or as further instructed by Customer in its use of the Subscription Services.
Personal Data will be Processed for purposes of providing the services set out, as further instructed by Controller in its use of the Services, and otherwise agreed to in the Agreement and any applicable Order. Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws.
Personal Data will be Processed for the duration of the Agreement and will be subject to the "Deletion or Return of Personal Data" section of this DPA.
Within the scope of the Agreement and in its use of the services, Customer shall be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to ICEFLO.
In particular but without prejudice to the generality of the foregoing, Customer acknowledges and agrees that it shall be solely responsible for:
(i) the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Personal Data;
(ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorisations (particularly for use by Customer for marketing purposes);
(iii) ensuring it has the right to transfer, or provide access to, the Personal Data to ICEFLO for Processing in accordance with the terms of the Agreement (including this DPA);
(iv) ensuring that its Instructions to ICEFLO regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and
(v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Subscription Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. Customer shall inform ICEFLO without undue delay if it is not able to comply with its responsibilities under this sub-section or applicable Data Protection Laws.
The parties agree that the Agreement (including this DPA), together with Customer's use of the Subscription Service in accordance with the Agreement, constitute Customer’s complete and final Instructions to ICEFLO in relation to the Processing of Personal Data, and additional instructions outside the scope of the Instructions shall require prior written agreement between Customer and ICEFLO.
ICEFLO shall only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of Customer’s lawful Instructions, except where and to the extent otherwise required by applicable law. ICEFLO is not responsible for compliance with any Data Protection Laws applicable to Customer or Customer's industry that are not generally applicable to ICEFLO.
If ICEFLO becomes aware that it cannot Process Personal Data in accordance with Customer's Instructions due to a legal requirement under any applicable law, ICEFLO will:
(i) promptly notify Customer of that legal requirement to the extent permitted by the applicable law; and
(ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as Customer issues new Instructions with which ICEFLO is able to comply. If this provision is invoked, ICEFLO will not be liable to Customer under the Agreement for any failure to perform the applicable Subscription Services until such time as Customer issues new lawful Instructions with regard to the Processing.
ICEFLO shall implement and maintain appropriate technical and organisational measures to protect Personal Data from Personal Data Breaches, as described in the Security & Infrastructure Risk Overview document. Notwithstanding any provision to the contrary, ICEFLO may modify or update the Security Measures at its discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.
ICEFLO shall ensure that any personnel whom ICEFLO authorises to Process Personal Data on its behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data. The undertaking to confidentiality shall continue after the termination of the above-entitled activities.
ICEFLO will notify Customer without undue delay after it becomes aware of any Personal Data Breach and shall provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by Customer. At Customer’s request, ICEFLO will promptly provide Customer with such reasonable assistance as necessary to enable Customer to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if Customer is required to do so under Data Protection Laws.
ICEFLO will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Subscription Service in accordance with the procedures and time-frames set out in the Agreement, save that this requirement shall not apply to the extent ICEFLO is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which data ICEFLO shall securely isolate and protect from any further Processing and delete in accordance with its deletion practices. You may request the deletion of your ICEFLO account after expiration or termination of your subscription by sending a request to firstname.lastname@example.org. You may retrieve your Customer Data from your account in accordance with our ‘Retrieval of Customer Data’ sections throughout our Product Specific Terms.
To the extent that the required information is available to Processor and the Controller does not otherwise have access to the required information, Processor will provide reasonable assistance to Controller with any data protection impact assessments, and prior consultations with supervisory authorities or other competent data privacy authorities, which Controller reasonably considers to be required by article in the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to the processing of Personal Data.
The Subscription Service provides Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Personal Data, which Customer may use to assist it in connection with its obligations under Data Protection Laws, including its obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws ("Data Subject Requests").
To the extent that Customer is unable to independently address a Data Subject Request through the Subscription Service, then upon Customer’s written request ICEFLO shall provide reasonable assistance to Customer to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement. Customer shall reimburse ICEFLO for the commercially reasonable costs arising from this assistance.
If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to ICEFLO, ICEFLO will promptly inform Customer and will advise the Data Subject to submit their request to Customer. Customer shall be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.
Processor shall, in accordance with Data Protection Laws and in response to a reasonable written request by Controller, make available to Controller such information in Processor’s possession or control related to Processor’s compliance with the obligations of data processors under Data Protection Law in relation to its Processing of Personal Data.
Controller may, upon written request and at least 30 days’ notice to Processor, during regular business hours and without interrupting Processor’s business operations, conduct an inspection of Processor’s business operations or have the same conducted by a qualified third party auditor subject to Processor’s approval, which shall not be unreasonably withheld.
Processor shall, upon Controller’s written request and on at least 30 days’ notice to the Processor, provide Controller with all information necessary for such audit, to the extent that such information is within Processor’s control and Processor is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.
Standard Contractual Clauses.
Where Processor engages sub-processors, processor will enter into a contract with the sub-processor that imposes on the sub-Processor the same obligations that apply to Processor under this DPA. Where the sub-Processor fails to fulfil its data protection obligations, processor will remain liable to the controller for the performance of such sub-processors obligations.
Where a sub-processor is engaged, the Controller must be granted the right to monitor and inspect the sub-Processor’s activities in accordance with this DPA and the Data Protection Law, including to obtain information from the processor, upon written request, on the substance of the contract and the implementation of the data protection obligations under the sub-processing contract, where necessary by inspecting the relevant contract documents.
The provisions of this section shall mutually apply if the Processor engages a sub-Processor in a country outside the European Economic Area (“EEA”) not recognised by the European Commission as providing an adequate level of protection for personal data. If, in the performance of this DPA, ICEFLO transfers any Personal Data to a sub-Processor located outside of the EEA, ICEFLO shall, in advance of any such transfer, ensure that a legal mechanism to achieve adequacy in respect of that processing is in place.
Customer acknowledges and agrees that ICEFLO may access and Process Personal Data on a global basis as necessary to provide the Subscription Service in accordance with the Agreement. For Customers based in the United Kingdom and Europe, that Personal Data will be transferred to and Processed by ICEFLO Limited in the United Kingdom and to other jurisdictions where ICEFLO Affiliates and Sub-Processors have operations. For Customers based in the United States, that Personal Data will be transferred to and Processed by ICEFLO, Inc. in the United States and to other jurisdictions where ICEFLO Affiliates and Sub-Processors have operations. ICEFLO shall ensure such transfers are made in compliance with the requirements of Data Protection Laws.
This Section 9 (Additional Provisions for European Data) shall apply only with respect to European Data.
When Processing European Data in accordance with Customer's Instructions, the parties acknowledge and agree that Customer is the Controller of European Data and ICEFLO Limited is the Processor.
If ICEFLO believes that an Instruction of Customer infringes European Data Protection Laws (where applicable), it will inform Customer without delay.
ICEFLO will notify Customer of any changes to Sub-processors by updating the sub-processors page of our website and will give Customer the opportunity to object to the engagement of the new Sub-Processor on reasonable grounds relating to the protection of Personal Data within 30 days after updating on the sub-processors page. If Customer does notify ICEFLO of such an objection, the parties will discuss Customer's concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, ICEFLO will, at its sole discretion, either not appoint the new sub-processor, or permit Customer to suspend or terminate the affected Subscription Service in accordance with the termination provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by Customer prior to suspension or termination).
To the extent that the required information is reasonably available to ICEFLO, and Customer does not otherwise have access to the required information, ICEFLO will provide reasonable assistance to Customer with any data protection impact assessments, and prior consultations with supervisory authorities or other competent data privacy authorities to the extent required by European Data Protection Laws.
ICEFLO shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by Customer in order to assess compliance with this DPA. Customer acknowledges and agrees that it shall exercise its audit rights under this DPA by instructing ICEFLO to comply with the audit measures described in this sub-section. Customer acknowledges that the Subscription Service is hosted by ICEFLO's datacentre partners who maintain independently validated security programs (including SOC 2 and ISO 27001) and ICEFLO's systems are regularly tested by independent third party penetration testing firms. Upon request, ICEFLO shall supply (on a confidential basis) a summary copy of its penetration testing report(s) to Customer so that Customer can verify ICEFLO's compliance with this DPA. Further, at Customer's written request, ICEFLO will provide written responses (on a confidential basis) to all reasonable requests for information made by Customer necessary to confirm ICEFLO's compliance with this DPA, provided that Customer shall not exercise this right more than once per calendar year.
This Section (Additional Provisions for California Personal Information) shall apply only with respect to California Personal Information.
When processing California Personal Information in accordance with Customer's Instructions, the parties acknowledge and agree that Customer is a Business and ICEFLO is a Service Provider for the purposes of the CCPA.
(a) Sell California Personal Information (as defined in the CCPA);
(b) retain, use, or disclose California Personal Information for a commercial purpose other than for the Business Purpose or as otherwise permitted by the CCPA; or
(c) retain, use, or disclose California Personal Information outside of the direct business relationship between Customer and ICEFLO.
ICEFLO certifies that it understands and will comply with the restrictions set out in the Section -'Responsibilities' above.
Notwithstanding anything else to the contrary in the Agreement and without prejudice to the Security Section, ICEFLO reserves the right to make any updates and changes to this DPA and the amendment terms the Agreement shall apply.
If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA shall not be affected.
Each party and each of their Affiliates' liability, taken in aggregate, arising out of or related to this DPA (and any other DPAs between the parties) and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, shall be subject to the limitations and exclusions of liability set out in the section of the Agreement entitled 'Limitation of Liability' and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA). For the avoidance of doubt, if ICEFLO, Limited is not a party to the Agreement, the section of the Agreement entitled ‘Limitation of Liability’ shall apply as between Customer and ICEFLO Limited, and in such respect any references to ‘ICEFLO’, ‘we’, ‘us’ or ‘our’ shall include both ICEFLO Limited and the ICEFLO entity that is a party to the Agreement.
This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
By signing the Agreement, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of its Permitted Affiliates, thereby establishing a separate DPA between ICEFLO and each such Permitted Affiliate subject to the Agreement and Sections 9 and 10 of this DPA. Each Permitted Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and such Permitted Affiliates.
The legal entity agreeing to this DPA as Customer represents that it is authorised to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Permitted Affiliates.
Except where applicable Data Protection Laws require a Permitted Affiliate to exercise a right or seek any remedy under this DPA against ICEFLO directly by itself, the parties agree that (i) solely the Customer entity that is the contracting party to the Agreement shall exercise any right or seek any remedy any Permitted Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Customer entity that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. The Customer entity that is the contracting entity is responsible for coordinating all communication with ICEFLO under the DPA and shall be entitled to make and receive any communication related to this DPA on behalf of its Permitted Affiliates.
The parties agree that Customer shall, when reviewing ICEFLO's compliance with this DPA pursuant to the Section - 'Demonstration of Compliance', take all reasonable measures to limit any impact on ICEFLO and its Affiliates by combining several audit requests carried out on behalf of the Customer entity that is the contracting party to the Agreement and all of its Permitted Affiliates in one single audit.