Data Processing Schedule

1. DEFINITIONS AND INTERPRETATION
   1. Save as otherwise defined below, defined terms in this Schedule shall have the meaning given to them in the End User Services Agreement (“EUSA”)
   2. In this Schedule, the following terms shall have the meanings set out below:
      1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, and “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
      2. “Applicable Laws” means the laws and regulations of any Member State of the European Union or the laws of the European Union applicable to the parties and any other applicable law, including but not limited to the Data Protection Legislation and the e-Privacy Legislation;
      3. “Customer Personal Data” means any Personal Data included in Customer Recipient Data, as are provided to iContact under the EUSA and as further specified in Annex I to this Schedule;
      4. “Data Protection Legislation” means (i) the EU Data Protection Directive (95/46/EC) as transposed into domestic legislation of each Member State as amended, replaced or superseded from time to time including by the GDPR and laws implementing or supplementing the GDPR; and (ii) to the extent applicable, the data protection laws of any other country, including the United Kingdom if and when the United Kingdom ceases to be a Member State;
      5. “Data Controller” has the meaning set out in the GDPR;
      6. “Data Processor” has the meaning set out in the GDPR;
      7. “Data Subject” has the meaning set out in the GDPR;
      8. “e-Privacy Legislation” means (i) the EU Privacy and Electronic Communications Directive (2002/58/EC) as transposed into domestic legislation of each Member State as amended, replaced or superseded from time to time; and (ii) to the extent applicable, the privacy laws of any other country, including the United Kingdom if and when the United Kingdom ceases to be a Member State;
      9. “GDPR” means General Data Protection Regulation ((EU) 2016/679);
      10. “Personal Data” has the meaning set out in the GDPR;
      11. “Personal Data Breach” has the meaning set out in the GDPR;
      12. “Restricted Transfer” means a transfer of Personal Data from the Customer to iContact, or from to iContact to a Sub-Processor, where such transfer would, in the absence of Standard Contractual Clauses, be prohibited by Data Protection Legislation;
      13. “Standard Contractual Clauses” means the standard controller to processor contractual clauses at Annex II to this Schedule; and
      14. “Sub-processor” means any person appointed by or on behalf of the Data Processor to process Personal Data on behalf of the Data Controller in connection with the EUSA.
2. DATA PROTECTION – GENERAL
   1. The provisions of this Schedule shall only apply if Customer provides to iContact any Customer Recipient Data which relates to a Data Subject resident in the European Union.
   2. Both parties will comply with all requirements of the Data Protection Legislation applicable to their role as Data Processor or Data Controller, as applicable. This Schedule is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
3. CUSTOMER PERSONAL DATA
   1. The parties acknowledge that for the purposes of the Data Protection Legislation and this Schedule the Customer is the Data Controller and iContact is the Data Processor in respect of Customer Personal Data.
   2. The obligations contained in this Schedule shall apply to any Affiliate of iContact who processes data under the EUSA.
   3. Annex I sets out the scope, nature and purpose of processing by iContact, the duration of the processing and the types of Personal Data and categories of Data Subject.
   4. Without prejudice to the generality of clause 3.1, the Customer will ensure that it is lawful to enable the transfer of the Customer Personal Data to iContact for the duration and for the purposes of the EUSA.
   5. Without prejudice to the generality of clause 3.1, iContact shall, in relation to any Customer Personal Data processed in connection with the performance by iContact of its rights and obligations under the EUSA:
      1. process that Customer Personal Data only on the written instructions of Customer, including but not limited to any instructions contained in any EUSA unless iContact is obliged to process such Personal Data by the Applicable Laws. Where iContact is relying on the Applicable Laws as the basis for processing Customer Personal Data, iContact shall, insofar as is permissible under such Applicable laws, promptly notify the Customer of its obligations before performing the processing required by the Applicable Laws;
      2. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, such as are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). iContact shall make available details of these technical and organisation measures on its website;
      3. take all reasonable steps to ensure the reliability of all personnel who have access to and/or process Customer Personal Data and shall ensure that all such personnel are obliged to keep the Customer Personal Data confidential and that access to Personal Data is limited to those individuals who need to have access to Customer Personal Data for the purposes of the EUSA and to comply with Applicable Laws;
      4. be bound by the Standard Contractual Clauses, which are hereby incorporated into this Schedule, in respect of any Restricted Transfer of Customer Personal Data from the Customer to iContact. Such Standard Contractual Clauses shall come into effect upon the commencement of the relevant Restricted Transfer;
      5. shall not otherwise enter into any Restricted Transfer unless the prior written consent of the Customer has been obtained and the Standard Contractual Clauses are used in relation to such transfer;
      6. notify the Customer without undue delay on becoming aware of a Personal Data Breach involving Customer Personal Data or upon receipt of a request or complaint from a Data Subject involving Customer Personal Data;
      7. assist the Customer, at the Customer’s cost (save where such assistance is required as a result of a breach by iContact of its obligations under this Schedule and/or the EUSA in which case such costs will be borne by iContact), in responding to any request from a Data Subject (but shall not respond to any such request without the Customer’s prior written consent, unless otherwise required by the Data Protection Legislation)and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
      8. within thirty days of termination of the EUSA, at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer unless required by Applicable Law to store the Customer Personal Data. The Customer agrees that, in relation to any Customer Personal Data provided to iContact during a Trial Period, iContact may destroy any such data at the end of the Trial Period or shortly thereafter if the Customer does not convert its account to iContact Free Edition or a standard paid customer account, and that it will not request the return of such Customer Personal Data.
   6. iContact shall maintain complete and accurate records and information (“Records”) to demonstrate its compliance with this Schedule and will allow the Customer by its own personnel or by an independent auditor, who executes Customer’s standard non-disclosure EUSA, to access all such Records during the term of the EUSA and for one year after termination provided:
      1. any such access for the purposes of auditing or otherwise inspecting the Records shall be on not less than thirty (30) days written notice at any time during normal business hours and not more than once during any twelve (12) month period unless:
         1. the Customer has reasonable grounds to suspect that a Personal Data Breach has occurred involving Customer Personal Data; or
         2. the Customer is required or requested to carry out an audit by Data Protection Legislation or a regulatory authority responsible for the enforcement of Data Protection Legislation in any country; and
      2. the Customer shall make (and shall ensure that any independent auditor makes) reasonable endeavours to avoid causing any damage, injury or disruption to iContact’s premises, equipment, personnel and business during the audit;
      3. the Customer shall submit a detailed audit plan to iContact upon giving notice of an audit, setting out details of the proposed scope and duration of the audit, such audit plan to be agreed between the parties (acting reasonably);
      4. if the scope of the requested audit has been addressed in an audit carried out by a recognised independent third-party auditor within twelve (12) months of the Customer’s request, and iContact provides written confirmation that there have been no material changes in the controls and systems to be audited, the Customer agrees to accept that audit report in lieu of carrying out its own audit; and
      5. the Customer shall bear the costs of the audit, save where iContact is found to be in breach of its obligations under this Schedule in which case iContact will bear the cost of the audit.
   7. The Customer hereby consents to iContact appointing Sub-Processors in connection with the provision of the Services. IContact shall make available on its website a list of current Sub-Processors and shall notify the Customer via its website when a Sub-processor is replaced or added to this list. Upon notification, the Customer shall have 10 days to object to the appointment of the new Sub-processor. If the Customer objects on reasonable grounds, the Customer shall have the right to terminate the EUSA immediately on notice.
   8. iContact confirms that it has entered or (as the case may be) will enter with any appointed Sub-Processor into a written agreement incorporating terms which are substantially similar to those set out in this Schedule. As between the Customer and iContact, iContact shall remain fully liable for all acts or omissions of any Sub-Processor appointed by it pursuant to clause 3.7.
   9. iContact may, at any time on not less than 30 days’ notice, revise this Schedule by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.

ANNEX I

PROCESSING, PERSONAL DATA AND DATA SUBJECTS

Type	Description
Nature and Purpose of processing	iContact may process Customer Personal Data in accordance with the EUSA in order to facilitate Customer’s electronic distribution of content to Customer’s Recipients and as necessary to perform the Services and comply with its obligations under the EUSA.
Duration of the processing	Subject to clause 3.5.8, iContact may process Customer Data for the duration of the EUSA, unless otherwise agreed by the parties.
Types of personal data	Name, title, email address, business phone number, mobile phone number, business address, personal address
Categories of data subject	Customer’s users of iContact’s services and Customer Recipients

ANNEX II

STANDARD CONTROLLER TO PROCESSOR CONTRACTUAL CLAUSES Standard Contractual Clauses (processors) 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 is: the Customer The data importer is: iContact Marketing Corp. (“iContact”) 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 1. Clause 1 Definitions 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 organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Clause 2 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. Clause 3 Third-party beneficiary clause

1. 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.
2. 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.
3. 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.
4. 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.

Clause 4 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, unauthorised 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).   Clause 5 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 EUSA 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 EUSA it concludes under the Clauses to the data exporter. Clause 6 Liability

1. 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.
2. 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.

3. 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.

Clause 7 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.

Clause 8 Cooperation with supervisory authorities

1. 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.
2. 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.
3. 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).

Clause 9 Governing Law The Clauses shall be governed by the law of the Member State in which the data exporter is established. Clause 10 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. Clause 11 Subprocessing

1. 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 EUSA with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written EUSA the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such EUSA.
2. 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.
3. 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.
4. The data exporter shall keep a list of subprocessing EUSAs 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.

Clause 12 Obligation after the termination of personal data processing services

1. 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.
2. 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 the Standard CONTROLLER TO PROCESSOR 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 Data exporter The data exporter is: The Customer Data importer The data importer is: iContact Data subjects The personal data transferred concern the following categories of data subjects: Customer Recipients Categories of data The personal data transferred concern the following categories of data: Name, title, email address, business phone number, mobile phone number, business address, personal address Special categories of data (if appropriate) The personal data transferred concern the following special categories of data:  Not applicable. Processing operations The personal data transferred will be subject to the following basic processing activities: iContact may process Customer Personal Data in accordance with the EUSA in order to facilitate Customer’s electronic distribution of content to Customer’s Recipients. Appendix 2 to the CONTROLLER TO PROCESSOR Standard Contractual Clauses This Appendix forms part of the Clauses. Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c): See icontact.com/technical-and-organizational-measures