TERMS OF SERVICE
Last Modified: May 15, 2021
“Data Subject” means any individual that has Personal Information Processed under this Addendum.
“Data Protection Legislation” means the EU Data Protection Directive 95/46/EC, the GDPR, together with all applicable legislation relating to data protection and privacy including all local laws and regulations which amend or replace them, as well as 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laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time.
“Personal Information” means any data relating to an identified or identifiable individual where such data is provided to us or collected in connection with provision of the Service under the Agreement and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.
“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.
“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.
“Instruction” means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
“Security Incident” means a breach of security of the Service or our systems which are used to Process Personal Information leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information which is Processed by us in the context of this Addendum.
“Processing” means any operation or set of operations performed on Personal Information, encompassing the collection, recording, organization, structuring, storage, adaption or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction of Personal Information.
“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 clauses attached hereto pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
1.1 Access: Subject to the terms and conditions of this Agreement and payment of all Service Fees, if applicable, DTV will provide you, a Registered User, with Access to the Web Services and your Authorized Users with Access to the Mobile Application.
1.2 Scheduled Available Time: DTV will take commercially reasonable efforts to make the Products available twenty-four (24) hours per day, seven (7) days a week, excluding:
1.2.1 Scheduled downtime for systems maintenance, including without limitation diagnostics, upgrades and operations reconfiguration.
1.2.2 Unscheduled downtime caused by forces beyond the immediate control of DTV, hardware failures, or downtime caused by network or the Internet connection problems.
1.4 Registration: The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you are using the Products in the capacity as an employee or agent, you must have the ability to bind your employer by your use of the Products.
1.5 Third Party Services: If you access the Services through a third party (a “Third Party Service”), you agree and acknowledge that we are not responsible or liable for any actions of such third party or for any aspect of such Third Party Service. Your use of such Third Party Service is at your own risk and agree and acknowledge that we may terminate such Third Party Service’s ability to interact with the Services at any time, with or without notice, and in our sole discretion.
Service Level Agreement (SLA): We will make the Services available twenty-four (24) hours per day, seven (7) days a week with an uptime target of 99.9%, excluding Scheduled Maintenance.
Age Restrictions: Persons under the age of 13 may not use the Service. Any access to or use of the Service by anyone under 13 years of age is expressly prohibited. By accessing or using the Service, you represent and warrant that you are 13 years old or older.
2.2 License Restrictions: You may not: (a) copy, modify, sell, lease or distribute the Services; (b) modify, translate or otherwise create derivative works of the Services; or (c) disassemble, decompile or reverse engineer the object code or source code of the Services.
2.3 Registered User Data: You hereby grant to DTV a revocable, nonexclusive, worldwide, royalty free, limited license to Registered User’s Data solely as necessary to perform the services for you as contemplated by this Agreement. To that end, DTV may copy, modify, execute and backup such data as necessary to perform its duties under this Agreement. DTV will treat such data as Confidential Information except as required by law.
2.3.1 You represent and warrant that you are the owner, agent or authorized licensee of all right, title and interest in and to any intellectual property, proprietary rights or other rights relating to Registered User Data and such data or use thereof is not harassing, defamatory, libelous, abusive, threatening, obscene, coercive, or objectionable, including material that is false, misleading, inaccurate or will violate any applicable law or regulation.
3. App Stores
3.1 Google Play Store:
The following applies to any Mobile Applications you download from the Google Play Store (“Google-Play App”): (i) you acknowledge that the Terms are between you and DTV only, and not with Google, Inc. (“Google”); (ii) your use of Google-Play App must comply with Google’s current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Play App; (iv) DTV, and not Google, is solely responsible for its Google-Play App; (v) Google has no obligation or liability to you with respect to Google-Play App or the Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Terms as relates to DTV Google-Play App.
3.2 Apple App Store
The following applies to any Mobile Applications you download from the App Store (“App Store-App”): You acknowledge and agree that these Terms are solely between you and DTV, not Apple, and that Apple has no responsibility for the App Store-App or content thereof. Your use of the App Store-App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-App. In the event of any failure of the App Store-App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to DTV as provider of the software. You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the App Store-App or your possession and/or use of the App Store-App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store-App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to DTV as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-App or your possession and use of that App Store-App infringes that third party’s intellectual property rights, DTV, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and DTV acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the App Store-App, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the App Store-App against you as a third-party beneficiary thereof.
3.3 Mobile Apps
The Services are made available through a mobile device (“Mobile Apps”). To use the Mobile Apps you must have a mobile device that is compatible with our Mobile Apps. We do not warrant that the Mobile Apps will be compatible with your mobile device. You may incur data or text messaging charges from your wireless provider for using the Mobile Apps. You agree that you are solely responsible for any such charges. DTV hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Apps. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Apps, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Apps to any third party or use the Mobile Apps to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Apps; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Apps, features that prevent or restrict use or copying of any content accessible through the Mobile Apps, or features that enforce limitations on use of the Mobile Apps; or (v) delete the copyright and other proprietary rights notices on the Mobile Apps. You acknowledge that DTV may from time to time issue upgraded versions of the Mobile Apps, and may automatically electronically upgrade the version of the Mobile Apps that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Apps is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile App or any copy thereof, and DTV or its third-party partners or suppliers retain all right, title, and interest in the Mobile App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. DTV reserves all rights not expressly granted under these Terms.
4. Intellectual Property
4.1 DTV Intellectual Property: DTV exclusively owns or has obtained licenses for all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation or techniques provided in the Service. You agree and acknowledge that no title to any Intellectual Property embodied therein passes to you under these Terms or your use of the Services.
4.2 Users Intellectual Property: You will retain exclusive ownership in all intellectual property rights, title and interest in any Confidential Information you provide while using the Services . We acknowledge that no title to any of your intellectual property passes to us under this Agreement. We shall not obtain any right, title or license to Registered User Data by virtue of your use of the Services, except a license to maintain and process such Registered User Data to the extent necessary to provide the Services.
4.3 Uploaded Content: By displaying, uploading, creating or publishing any content, messages, text, files, images, photos, video, sounds, profiles, works of authorship, or any other materials (collectively, “Content”) through the Services, you hereby grant DTV, a non-exclusive, fully-paid and royalty-free, worldwide license to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute such Content on your behalf. This license will immediately terminate at the time you remove such Content from the Services and terminate your account. Notwithstanding the foregoing, a backup or residual copy of the Content posted by you may temporarily remain our servers after you have removed the Content. You further agree to pay for all royalties, fees, and any other monies owing to any person for Content you uploaded should a license be required.
5. Authorized Users
5.1 Authority: In consideration of your use of the Services, you agree (a) that your Information will be true, accurate, current and complete, and (b) to maintain and promptly update your Information to keep it true, accurate, current and complete. You acknowledge and agree that you have the right to become User.
5.2 User Passwords / Temporary Codes: DTV does not use passwords for Users. We send temporary codes or links to your delegated contact address in order to authenticate your account. You are responsible for maintaining the confidentiality of your account by restricting access to these temporary codes and links on your authenticated devices. You agree to accept responsibility for all activities that occur under accounts you have authenticated.
5.3: Account Passwords: DTV does use passwords for Institution Accounts. Passwords are encrypted and not accessible by DTV support. If you have forgotten your password, you must reset it. You are responsible for maintaining the confidentiality of your account emails and passwords. You agree to accept responsibility for all activities that occur under your email logins. You will immediately notify us if you determine, or have reason to believe, that an unauthorized party has gained access to your account email and password. You authorize us to rely upon information and/or instructions set forth in any data transmission from the administrative email addresses listed in your account.
6. Financial Obligations
6.1 Free Tier: DTV does not charge Users any fees for use of the App or Service. Customers may claim their account and manage their Customers issued cards for free.
6.2 Paid Tiers: Customers may choose to upgrade to a Paid Tier. The recurring fee for Paid Tiers are charged monthly or annually, in advance in US Dollars. By default, Paid Tiers will be charged to your valid credit card for the then-current billing period. Any transactional fees occurring during the plan will be charged at the end of each month. You hereby authorize us to charge your credit card for such Paid Tier fees and transaction fees from the date you sign up for a Paid Tier and continuing until you terminate your account.
6.3 Postpaid Invoice Billing: Customers that exceed $500 in billings per month pay request to pay by check or wired funds.
6.4 Suspension of Service: If we are unable to collect payment for an approved charge within the agreed terms, whether the form of payment is by credit card or by check or wire, access to an account may be suspended or the account may be terminated.
7. Confidential Information
7.1 Business Terms: Under no circumstances may either party disclose any special pricing or business terms related specifically to this Agreement, or any negotiations thereof, to any third party (including, but not limited to, competitors, industry analysts, press or media).
7.2 Mutual Non-Disclosure: Neither party will use any Confidential Information of the disclosing party except as expressly permitted in this Agreement or as expressly authorized in writing by the disclosing party. Each party will use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party is allowed to disclose the other party’s Confidential Information to any person or entity other than the receiving party’s officers, employees, consultants and legal advisors who need access to such Confidential Information to affect the intent of the Agreement. Each party agrees to notify the other of any unauthorized use or disclosure of Confidential Information and to provide reasonable assistance to such other party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure.
8.1 Termination by You: You understand and agree that the cancellation of your account is your sole right and remedy with respect to any dispute with us. Users may terminate their relationship with DTV at any time by logging in to the Services and deleting their cards and account. DTV shall retain a license to data provided by Users until the User deletes their account. Customers may terminate our relationship by providing 30 day notice of termination to DTV. We will delete Institutional Data except for data for which the Institution has granted a license to users as part of the card installation process. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT. DTV IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT.
8.2 Termination by Us: We may suspend, delete, limit, deactivate or terminate your account or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services is no longer commercially available (iv) you stop using the Services for more than 180 days . In such a termination event, the license granted hereunder shall automatically terminate. DTV shall have no liability to you or any third party because of such termination or action. In all such cases, the Terms shall terminate, including, without limitation, your license to use the Services, except that the following Sections shall survive:
9. Limitation of Liability
9.1 Limitation of Liability:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DTV SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE PRODUCTS; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON,THROUGH, OR ASSOCIATED WITH THE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE PRODUCTS; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT, SHALL THE AGGREGATE LIABILITY OF THE BLACKBOARD ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID DTV, IF ANY, IN THE PAST SIX MONTHS FOR THE PRODUCTS GIVING RISE TO THE CLAIM.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT DTV HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.1 Mutual Warranty: Each party warrants to each other that it has the right and authority to enter into, and to grant the rights and perform the obligations described in these Terms.
10.2 As-Is Basis: Your access to and use of the Services or any Content are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, DTV DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER ORAL, EXPRESS, STATUTORY OR IMPLIED, OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. No advice or information, whether oral or written, obtained from DTV or through the Services, will create any warranty not expressly made herein.
10.3 Links: The Products may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the DTV of such websites or resources or the content, products, or services Available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
11. Information Security
11.1 Safeguards We will employ, and shall require any third party contractors to employ security measures that include the implementation of reasonable and appropriate administrative, technical and physical safeguards to protect Registered User Data under our control against unauthorized access or loss.
11.2 No Malware: We have not, and will not introduce into the Services, any malware including, without limitation, spyware, viruses, worms, adware, keystroke loggers, dialers, time bombs or time locks.
11.3 Restricted Access: We will implement reasonable restrictions regarding physical and electronic access to information and systems, including, but not limited to, physical access controls, secure user authentication protocols, secure access control methods, firewall protection, malware protections, and use of encryption for information being transmitted across the public internet or wirelessly and as otherwise required by privacy laws and regulations.
11.4 Policies: We maintain a reasonable and appropriate written data security policy that includes technological, physical, administrative and procedural controls to protect the confidentiality, integrity and availability of information and systems that encompasses access, retention and transport of information and that provides for disciplinary action in the event of its violation.
11.5 Access Control: We will prevent terminated employees from accessing information and systems by immediately terminating their physical and electronic access to such information.
11.6 Compliance: We will employ assessment, monitoring and auditing procedures to ensure internal compliance with these safeguards.
11.7 Annual Assessment: We will conduct a complete assessment of these safeguards at least annually.
11.8 Disaster Recovery: We will take regular backups of your Content and Data.
12. Export of Service
12.1 Export Control The Services are subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR”). You represent and warrant that (a) you are not located in a prohibited destination country under the EAR or U.S. sanctions regulations; and (b) you will not export, re-export, or transfer the Services to any prohibited destination or persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or any equivalent lists provided by other countries, without the necessary export license(s) or authorization(s).
13. Data Processing
13.1 Data Processing: If you are a paying Registered User to the Service, to the extent that we process any Personal Information contained in Registered User Data that is subject to the GDPR, on your behalf, in the provision of the Service, the terms of the data processing shall apply and the parties agree to comply with such terms.
Data Subject Categories. 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.
Types of Personal Data. Contact Information such as email address or phone number, Personal Information such as name, gender, date of birth, address, educational affiliation, Other Data such as navigational data (including website usage information), email data, system usage data, application integration data, and other electronic data or communications submitted, stored, sent, or received by Customers and end users. Sensitive Information such as trade union membership, biometric data, health data and biometric data. Health Data such as a physical or mental condition, body temperatures, medical symptoms, a medical diagnosis, or any other health related identity data that can be used to identify an individual. Employment Data such as employee identification, business title, business email, and business phone number.
Purpose of the Processing. Personal Data will be Processed in order to provide the services set out and otherwise agreed to in the Agreement and any applicable Order for the duration of the Agreement. The nature of Processing activities will be specified in the Agreement or an Order. Contact Information is Processed in order to authenticate Data Subjects, communicate with Data Subjects. Personal Information is processed in order to authenticate data subjects, display Data Subject information on their ID Cards or transfer Data Subject information to another Controller at their request. Other Data is Processed in order to provide the Service and support Data Subjects use of the Service. Sensitive Information such as trade union membership may be Processed for a Trade Union Customer or Trade Union Data Subject in order to provide the Data Subject with a Membership Card or message them on behalf of the trade union. Sensitive Information such as health information may be processed for a Data Subject on behalf of a health professional or health service in order to issue a health ID card for use to identity a patient being cared for. We may Process Health Data submitted with medical or health related data of Data Subjects. We may process Employment Data from the Data Subject while providing the Services on behalf of a Customer. If data pseudonymisation cannot be applied, we will only process sensitive information if the Controller has received explicit consent from the Data Subject and the Processing is subject to a derogation of the law.
13.1 The Processor
The parties acknowledge and agree that Customer is the “Controller” and DTV is the “Processor” as it relates to Data Protection Legislation. We, the Processor, shall collect, process and use Personal Information only within the scope of Controller’s Instructions. If we believe that an Instruction of the Controller infringes the Data Protection Legislation, we shall immediately inform the Controller and defer Processing until new Instructions are provided. We will not be liable to the Controller for any failure to perform the applicable services until such time as the Controller issues new Instructions in regard to the Processing. We shall ensure that any personnel whom Processor authorizes to process Personal Information on its behalf is subject to confidentiality obligations with respect to that Personal Information.
13.2 The Controller
The parties reiterate and confirm that Customer is the “Controller” and DTV is the “Processor” as it relates to Data Protection Legislation. The Controller’s Instructions for the Processing of Personal Information shall comply with the Data Protection Legislation. Controller shall inform us about any errors or irregularities related to statutory provisions on the Processing of Personal Information by Processor. The Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy regarding the disclosure and transfer of Personal Information to the Processor and the Processing of Personal Information within the scope of the Agreement. This TOS is the Controllers complete and final Instruction to the Processor in relation to Personal Information and that additional instructions outside the scope of this TOS requires prior written agreement between the parties.
13.3 Security Incident
We will notify the Controller as soon as practicable after we become aware of any Security Incident affecting any Personal Information. At the Controller’s request, we will promptly provide the Controller with all reasonable assistance necessary to enable the notification competent authorities and/or affected Data Subjects of the relevant Security Incident, if Controller is required to do so under Data Protection Legislation.
13.4 Transferring Data
The Controller acknowledges and agrees that, in connection with the performance of the services under the Agreement, Personal Information will be transferred to our servers in the United States. We have implemented appropriate safeguards for such transfers pursuant to Article 46 of the GDPR. The Standard Contractual Clauses will apply with respect to Personal Information that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data.
13.5 Data Deletion
We acknowledge and agree that as the Processor, following the termination or expiry of the Agreement, we will delete all Personal Information processed pursuant to this TOS. We may be required to keep backup copies to the extent required to comply with Data Protection Legislation. The Controller shall, before termination or expiration of the Agreement and by way of issuing an Instruction, stipulate the reasonable method and format to return of any Personal Information before it is deleted. Controller will be responsible for any additional cost arising in connection with the return or deletion Personal Information.
We take the appropriate technical and organizational measures to adequately protect Personal Information against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Information, as described in the Standard Contractual Clauses. We will also assist you with conducting any legally required data protection impact assessments, if so required by the Data Protection Legislation, taking into account the nature of Processing and the information available to us. We may charge a reasonable fee for any such assistance, as permitted by applicable law. In accordance with Article 32 of the GDPR, our Services have been designed with reasonable technical and organizational measures that will enable you to secure the Personal Information we Process for you. We will facilitate your compliance with your obligation to implement security measures with respect to Personal Information, by (i) implementing and maintaining the security measures described herein, (ii) complying with notification obligations for Security Incidents; and (iii) on request, providing information in relation to the Processing we perform for you or our organizational and technical security measures.
Security measures include:
Prevent unauthorized persons from physically gaining access to Processing systems by using means of physical access control,
Prevent Processing systems from being used without authorization by requiring strong passwords, two factor login, change management and access logging.
Limit access rights and privileges to only persons entitled to access the Processing system and gain access to the Personal Information as they are entitled and ensure Personal Information cannot be read, copied, modified or deleted without authorization.
Encrypt all data transmitted, communicated or stored ensuring that Personal Information that may be included in such data cannot be read, copied, modified or deleted without authorization.
Allow only integrations into Processing systems through secure web services and from a data sources controlled by the Controller
Log an audit trail to document whether and by whom Personal Information have been entered into, modified in, or removed from Processors systems.
Ensuring that Personal Information is Processed solely in accordance with the Instructions of the Controller.
Perform Back-ups on a regular basis to ensure that Personal Information is protected against accidental destruction or loss.
Logically segregate data from different customers’ environments to ensure that Personal Information collected is processed separately.
13.7 Data Subject Requests
The Controller is responsible for handling any requests from Data Subjects with respect to their Personal Information which is Processed under this Addendum. If such request is made directly to us, we will promptly inform the Controller and will advise the Data Subjects to submit their request to the Controller. The Controller shall be solely responsible for responding to any Data Subjects’ requests. We will provide reasonable assistance to enable Controller to comply with the request from Data Subjects with respect to their Personal Information, to the extent permitted by the law. Controller shall reimburse Processor for the costs arising from this assistance.
You agree that we may disclose Personal Information to our subcontractors for purposes of providing the Service (“Sub-Processors”), provided that we enter into an agreement with our Sub-Processors to impose obligations regarding the Processing of Personal Information that are at least as protective of Personal Information as those that apply to us hereunder, including requiring the Sub-Processors to only process Personal Information to the extent required to perform the obligations sub-contracted to them. The Controller consents to our Sub-processors listed herein. Where the Sub-processors fails to meet its data protection obligations, we will remain liable to the Controller for the performance of such obligations and all acts and omissions of the Sub-Processors.. If we intend to use Sub-Processors other than the companies listed in herein, the we will notify the Controller thereof in writing by email and will give the Controller the opportunity to confirm or object the new sub-Processors within 30 days after being notified. If the Processor and Controller are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party. Controller shall receive a refund of any prepaid but unused fees for the period following the effective date of termination. The Controller shall have the right to review all sub-Processor’s activities in accordance with this TOS and the Data Protection Legislation, 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. We have subsidiaries and sub-Processors in a country outside the European Economic Area (“EEA”) not recognized by the European Commission as providing an adequate level of protection for personal data we shall, and already have a legal mechanism in place for each Sub-Processor to achieve adequacy in respect of that processing is in place.
We shall make available to all information necessary to demonstrate compliance with our obligations in this Addendum, to the extent that such information is within our control and we is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party. We shall, upon Controller’s written request and within a reasonable period of time, provide Controller with all technical and organizational information about our Processing of Personal Information and allow a Controller to audit the technical and organizational measures taken by us at regular intervals. We will supply, on request, any existing attestation or certificate by an independent professional expert and conduct an on-site inspection of our business operations upon reasonable advance agreement. At your request, we will assist you in the event of an investigation by a competent regulator, including a data protection regulator or similar authority, if and to the extent that such investigation relates to the Processing of Personal Information by us on your behalf in accordance with this Addendum. We may charge a reasonable fee for such requested assistance except where such investigation arises from a breach of the Agreement or this Addendum by us, to the extent permitted by applicable law.
13.10 General Provisions
We may update and change any part or all of our Terms of Service including our Data Processing Terms (hereinafter referred to as “ToS”) needed to comply with Data Protection Legislation. If we update or change this ToS, the updated version will be posted at www.digiteckvision.com and we will inform Controllers through email. The updated ToS will become effective and binding on the next business day after it is posted. When we change the ToS, the “Last Modified” date above will be updated to reflect the date of the most recent version. If you do not agree with a modification to the ToS, you must notify us in writing within thirty (30) days after receiving notice of modification and then previous modification will remain effective until your renewal date.
In case of any conflict, this ToS shall take precedence over the Agreement. Where individual provisions of this ToS are invalid or unenforceable, the validity and enforceability of the other provisions of this TOS shall not be affected.
Upon the incorporation of this ToS into the Agreement, the parties are agreeing to the Standard Contractual Clauses and all appendixes attached thereto. In the event of any conflict or inconsistency between this TOS and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
Upon the incorporation of this ToS into the Agreement the Controller and the Processor entity that are each a party to the Agreement are also each a party to this ToS. If a party is not the party to the Agreement, the party will be a party to this ToS and to the Standard Contractual Clauses.
IF YOU ARE NOT A PARTY TO THE AGREEMENT BUT A PARTY TO THE ToS, YOU AGREE THAT OUR AGGREGATE LIABILITY TO YOU WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU ACTUALLY PAID US IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
The legal entity agreeing to this ToS as Controller represents that it is authorized to agree to and enter into this ToS for, and is agreeing to this ToS solely on behalf of, the Controller.
13.11 EU Commission Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, the “Data Exporter” and “Data Importer” 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.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
(a) The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
(b) The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
(c) The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
(d) The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
(a) The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
(b) If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
(c) If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
(a) The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
(b) The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
(c) The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the country and state in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
(a) The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub processor which imposes the same obligations on the sub processor as are imposed on the data importer under the Clauses. Where the sub processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub processor’s obligations under such agreement.
(b) The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
(c) The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
(d) The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
(a) The parties agree that on the termination of the provision of data-processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
(b) The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 to Standard Contractual Clauses
APPENDIX 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
A. Data exporter
The data exporter is the Customer, as defined in the DTV Terms of Service (“Agreement”).
B. Data importer
The data importer is Identidee LLC., a global provider of mobile ID and identity as a service software.
C. Data subjects
Categories of data subjects set out under Section 2 of the Data Processing Amendment to which the Clauses are attached.
D. Categories of data
Categories of personal data set out under Section 2 of the Data Processing Amendment to which the Clauses are attached.
E. Special categories of data (if appropriate)
We anticipate the possibility of a Controller exporting special categories of data listed in Section 2 of the Data Processing Amendment. Any special categories of data imported by us will only be Processed in the case where the Controller obtains ‘explicit’ consent, their use of our Services affords a derogation of the law or the Controller performs pseudonymisation of the data where the data is not attributed to an identified or identifiable natural person.
F. Processing operations
The processing activities set out under Section 2 of the Data Processing Agreement to which the Clauses are attached refer to the Agreement to which the TOS is incorporated.
APPENDIX 2 to Standard Contractual Clauses
This Appendix forms part of the Standard Contractual Clauses.
In accordance with Clauses 4(d) and 5(c) we are providing a description of the technical and organizational security measures we have implemented as the data importer. We currently observes the security measures described in our information security information page www.digiteckvision.com. Notwithstanding any provision to the contrary otherwise agreed to by data exporter, we reserve the right to update these measures at any time provided that such modification does not result in a reduced protection to the Data Subjects
EXHIBIT 2 – Sub-Processors
Digiteck Vision LLC ( Our Parent company)
TechStack LLC (Our Subsidiary)
Amazon Web Services Inc. (Application Hosting)
WIX (Website Hosting)
New Relic Inc (Application Monitoring)
HubSpot (CRM & Live Chat)
Google Inc (Email & Document Hosting)
MicroStrategy (Analytics and database)
STid (Mobile Access Card and Mobile ID)
Messageinum (messaging and communication)
13.1 Notices You may give notice to DTV at any time by letter delivered by registered mail with return receipt to: Digiteck Vision WLL, Office 04111 Building 1459 (West Tower, Bahrain Financial Harbor) Road 4626, Manama/ Seafront, Block 346, Bahrain. If you have any questions about these Terms, please contact us at firstname.lastname@example.org.
13.2 Choice of Law: These Terms and any action related thereto will be governed by the laws of the Kingdom of Bahrain without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings, or litigation arising in connection with the Service will be brought solely in the federal or state courts located in Bahrain, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum
13.3 Arbitration and Equitable Relief: The parties agree that any dispute or claim arising out of or relating to any interpretation, construction, performance or breach of these Terms, will be settled by expedited arbitration to be held in the Kingdom of Bahrain in accordance with the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with the said Rules. This Agreement will be governed by an must be construed in accordance with the substantive laws of Chambers of Commerce and Industry (FICCI) through FACT (FICCI Arbitration and Conciliation Tribunal) then in effect. Each of the parties will separately pay its counsel fees and expenses. The prevailing party as determined by the arbitrator will be entitled to costs and fees associated with the action.
13.4 Independent Entities: The parties are independent entities. Neither party will be deemed to be an employee, agent, partner nor legal representative of the other for any purpose, and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.
13.5 Severability: The failure of DTV to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
13.7 Survival: The respective rights and obligations under all sections of this Agreement that by their nature should survive termination will survive termination including, without limitation, ownership, warranty disclaimers and limitations of liability.