Effective March 15, 2021
Chartbeat For Everyone Service. The Chartbeat For Everyone Service provides real-time Traffic Data (as defined in Section 2) for the top twenty pages of your website. Chartbeat is no longer accepting new customer registrations for the Chartbeat For Everyone Service, but existing customers may contact firstname.lastname@example.org for assistance. You must provide certain limited information about yourself as prompted to do so by the Service. We reserve the right to refuse access to the Chartbeat Service to any user. For usage of the Chartbeat For Everyone Service, Chartbeat requires either a valid credit card or specific information for invoices to be e-mailed and paid via ACH or check.
Chartbeat Publishing Service. Chartbeat Publishing Service is an analytics suite that provides a basic service including real-time and historical traffic data for all pages of your major media website, and it may also include additional premium features and services. Chartbeat Publishing Service rates vary depending on the needs of your organization. To learn more about the Chartbeat Publishing Service, please contact us at email@example.com. In the event you wish to purchase the Chartbeat Publishing Service, no binding agreement regarding the Chartbeat Publishing Service will exist between you and Chartbeat unless and until you and Chartbeat execute a Work Order or other agreement governing the provision of the Chartbeat Publishing Service (“Work Order”). In the event of any conflict between these Terms of Service and the applicable Work Order or other agreement, the terms of the Work Order or other agreement shall govern.
Datastream. Datastream is a data pipeline service that delivers the traffic data Chartbeat collects about your applications to your cloud-hosted storage. Datastream rates vary depending on the needs of your organization. To learn more about the Datastream service, please contact us at firstname.lastname@example.org. In the event you wish to purchase the Datastream service, no binding agreement regarding the Datastream service will exist between you and Chartbeat unless and until you and Chartbeat execute a Work Order or other agreement governing the provision of the Chartbeat Publishing Service (“Work Order”). In the event of any conflict between these Terms of Service and the applicable Work Order or other agreement, the terms of the Work Order or other agreement shall govern.
Chartbeat Video. The Chartbeat Video Service shows online video in context so publishers know exactly how their video engagement relates to their written content. The Chartbeat Video Service is available only to Chartbeat Publishing customers.
You shall own all rights in and to all Traffic Data, subject to the rights and licenses granted herein. “Traffic Data” means all data and information created, received, processed or provided by Chartbeat in performing the Service, or that results from performance of the Service for you. You hereby grant Chartbeat all necessary rights to access and track Traffic Data concerning your website, solely in connection with providing the Service during the term of this Agreement.
Except with regard to any Free Trial Period, Chartbeat bills its customers in advance on an annual basis. All amounts due shall be paid in US dollars.
Taxes. Applicable taxes will be billed as a separate item or line item and may be billed at a later date. You shall pay sales, use, value added, goods and services, and all other similar taxes imposed by any federal, state, or local governmental entity for taxable items and/or services provided under this Agreement, excluding taxes based solely on Chartbeat’s income or property. You shall pay such tax(es) in addition to the sums due under this Agreement provided that Chartbeat itemizes them on a proper sales and use, VAT, GST, or other invoice. Any taxes paid on your behalf by Chartbeat shall be uniquely identified on the applicable invoice, and Chartbeat shall provide you with proof of payment if previously paid by Chartbeat. You shall indemnify and hold Chartbeat harmless from any interest or penalties imposed on you because of Chartbeat’s omission to pay or its under payment of any taxes on your behalf. In the event you are required to withhold any portion of service fees due to payments to banks or taxing authorities, (i) you agree to do so and to indemnify Chartbeat for any liability resulting from your failure to make such withholdings, and (ii) Chartbeat reserves the right to adjust the pricing of the Service so that you are responsible for payment to Chartbeat of the full amount for the Service, net of any such withholdings. The Parties shall cooperate in good faith to minimize taxes to the extent legally permissible. Each Party shall provide and make available to the other Party any resale certificates, treaty certification, and other exemption information reasonably requested by the other Party. Notwithstanding the foregoing, provided you furnish Chartbeat with a valid and timely tax exemption certificate, no sales, use, value added, goods and services, or other similar taxes will be billed.
Payments for Chartbeat For Everyone Service. If you are a Chartbeat For Everyone Service customer, your credit card will be charged or invoices will be issued to you on a recurring monthly basis starting on the 31st day after your account was initially created. Chartbeat will not issue refunds for fees paid for a Chartbeat For Everyone Service account, even for periods of inactivity. Chartbeat may change the price of the Chartbeat For Everyone Service upon thirty (30) days notice to you. Such notice may be provided at any time by posting the changes to the Site. Chartbeat will not be liable to you or to any third party for any modifications, price changes, or suspension or discontinuation of the Chartbeat For Everyone Service.
Payment for Other Services. If you register for the Chartbeat Publishing or Video Service, you will be charged according to the terms of your Work Order.
CHARTBEAT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. THE SERVICE IS PROVIDED BY CHARTBEAT AND ITS LICENSORS "AS IS" AND "AS AVAILABLE." YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORMS, OR OTHER DAMAGING MATERIALS NOT CAUSED BY OR ARISING FROM CHARTBEAT. IN NO EVENT DOES CHARTBEAT GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT FOR YOU. CHARTBEAT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, ARE ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE'S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION 5 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY CHARTBEAT FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. CHARTBEAT MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM YOUR WEBSITE’S END USERS.
IN NO EVENT WILL CHARTBEAT AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT CHARTBEAT WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. IN NO EVENT SHALL CHARTBEAT’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL SUM OF MONIES PAID FROM YOU TO US AS CONSIDERATION FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS CHARTBEAT, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL DEMANDS, LIABILITIES, LOSSES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES, ARISING OUT OF (i) YOUR USE OF THE SERVICE, (ii) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (iii) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, OR (iv) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST US ARISING OUT OF YOUR USE OF THE SERVICE OR THE SITE. CHARTBEAT RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
Unless otherwise specified in an applicable Work Order, the term of the license granted herein for the Service shall commence upon the earlier of (i) your implementation or (ii) your agreement to these Terms of Service, and may be terminated as set forth herein. Upon termination of this Agreement, all licenses, and any other rights and services provided by Chartbeat to you in this Agreement, shall cease immediately, and, unless otherwise specified in an applicable Work Order, Chartbeat will have no obligation to store, retain or provide any Traffic Data (historical or otherwise) to you. We also may permanently or temporarily terminate, suspend, or otherwise refuse to permit your use of the Service upon reasonable prior notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your nonpayment of fees. Termination of this Agreement, any license granted hereunder, or your access to the Site, shall not limit us from pursuing other remedies available to us, including but not limited to injunctive relief.
Termination of Chartbeat For Everyone Service. Termination of Chartbeat For Everyone Service. If you are a Chartbeat For Everyone Service customer, you or we may terminate this Agreement at any time, in whole or in part, for any reason, provided that if you terminate, you shall be obligated to pay any fees accrued prior to the date of termination. You may terminate this Agreement by e-mailing Chartbeat at email@example.com, or accessing Account Settings --> Billing Information from your dashboard. You must remove all Chartbeat scripts and materials from your website(s) within ninety (90) days after termination.
Termination of Chartbeat Publishing, Datastream, and Video Services. If you are a Chartbeat Publishing or Video Service customer, you or Chartbeat may terminate this Agreement only (i) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party or (ii) as otherwise set forth in your Work Order, provided that you shall remain obligated to pay any fees accrued prior to the date of termination. To terminate this Agreement in accordance with this section, e-mail firstname.lastname@example.org. You must remove all Chartbeat scripts and materials from your website within ninety (90) days after termination.
Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
Assignment. You may not assign or otherwise transfer your rights or delegate your obligations under this Agreement, in whole or in part, and any attempted assignment by you shall be null and void.
Third Party Service Providers. Chartbeat may provide the Service directly or indirectly using contractors or other third party vendors or service providers. Chartbeat will not be responsible or liable for any failure in the Service or any damages resulting from or attributable to failures of networks, telecommunications or equipment or other failures of third party suppliers or vendors.
Publicity.You hereby consent to the inclusion and publishing of your name and trademarks or service marks in connection with Chartbeat's marketing and promotional efforts.
Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: the first two paragraphs of Section 2, and Sections 3 through 9.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and the federal U.S. laws applicable therein, excluding its choice of law provisions, and the parties agree to submit to the personal and exclusive jurisdiction of such courts.
Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties.
No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Chartbeat - email@example.com, or if to you, to the email or physical address associated with your account. You hereby agree to receiving any notices relevant to the Services or this Agreement by e-mail without requiring a handwritten signature for such notice to be effective.
Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
This Data Processing Addendum (“Addendum”) supplements the Terms of Service (the “Agreement”) entered into by and between you (“you,” “Controller,” “Data Exporter”) and Chartbeat, Inc. (“Chartbeat,” “Processor,” “Data Importer”), available at https://chartbeat.com/terms, as may be updated from time to time, or such other agreement between you and Chartbeat governing your use of the Services. This Addendum incorporates the terms of the Agreement, and any terms not defined in this Addendum shall have the meaning set forth in the Agreement. In the event of a conflict between the terms and conditions of this Addendum and the Agreement, the terms and conditions of this Addendum shall supersede and control.
"Affiliate" means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
"Anonymous Data" means Personal Data that has been processed in such a manner that it can no longer be attributed to an identified or identifiable natural person, taking in consideration the use of reasonable and available technical means at the time of the data processing.
"Authorized Employee" means an employee of Processor who has a need to know or otherwise access Personal Data to enable Processor to perform their obligations under this Addendum or the Agreement.
"Authorized Sub-Processor" means a third-party who has a need to know or otherwise access Personal Data to enable Processor to perform its obligations under this Addendum or the Agreement, and who is either (1) listed the Authorized Sub-Processors List, available at lp.chartbeat.com/subprocessors, or (2) authorized by Controller to do so under Section 4.2 of this Addendum.
"CCPA" means the California Consumer Privacy Act.
"Data Subject" means an identified or identifiable person to whom Personal Data relates.
"Instruction" means a direction, either in writing, in textual form (e.g. by e-mail) or by using a software or online tool, issued by Controller to Processor and directing Processor to Process Personal Data.
"Personal Data" means any information relating to Data Subject which is subject to Data Protection Laws (defined below) and which Processor Processes on behalf of Controller other than Anonymous Data.
"Personal Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored, or otherwise processed by Processor on behalf of Controller.
"Process" or "Processing" means any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as, but not limited to, collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
"Services" shall have the meaning set forth in the Agreement.
"Standard Contractual Clauses" means the agreement executed by and between Controller and Processor and attached hereto as Exhibit B pursuant to the European Commission’s decision (C(2010)593) of February 5, 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 protection (or any updated version thereof).
"Supervisory Authority" means an independent public authority which is established by a member state of the European Union, Iceland, Liechtenstein, Norway, or any other applicable data protection authority having authority to regulate the activities of Chartbeat in the jurisdictions in which Chartbeat operates.
Processing of Data
The rights and obligations of the Controller with respect to this Processing are described herein. Controller shall, in its use of the Services, at all times Process Personal Data, and provide instructions for the Processing of Personal Data, in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679, the “GDPR”) and any other applicable data protections legislations which Chartbeat may be subject to, including the Brazilian General Data Protection Law (Federal Law n. 13,709/2018) (together, “Data Protection Laws”). Controller shall ensure that its instructions comply with all laws, rules and regulations applicable in relation to the Personal Data, and that the Processing of Personal Data in accordance with Controller’s instructions will not cause Processor to be in breach of the Data Protection Laws. Controller is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Processor by or on behalf of Controller, (ii) the means by which Controller acquired any such Personal Data, and (iii) the instructions it provides to Processor regarding the Processing of such Personal Data. Controller shall not provide or make available to Processor any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Processor from all claims and losses in connection therewith. This Addendum does not apply to Personal Data for which Processor is a controller.
Processor shall not Process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with the terms and conditions set forth in this Addendum or any other documented instructions provided by Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest and (iii) in violation of the Data Protection Laws. Controller hereby instructs Processor to Process Personal Data in accordance with the foregoing and as part of any Processing initiated by Controller in its use of the Services.
The subject matter, nature, purpose, and duration of this Processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this Addendum. Controller will notify Processor in writing and as soon as commercially practicable (but in no event more than five (5) business days) after Controller knows of any inaccuracies in Exhibit A or any changes that should be made to Exhibit A, including without limitation any additional categories of Personal Data that Controller provides to Processor for Processing hereunder.
Following completion of the Services, at Controller’s choice, Processor shall return or delete the Personal Data, unless further storage of Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Processor shall take measures to block such Personal Data from any further Processing (except to the extent necessary for its continued hosting or Processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. Where transfers of Personal Data are being made under the Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Processor to Controller only upon Controller’s request.
Processor shall take commercially reasonable steps to ensure the reliability and appropriate training of any Authorized Employee.
Processor shall ensure that all Authorized Employees are made aware of the confidential nature of Personal Data and have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their engagement with Processor, any Personal Data except in accordance with their obligations in connection with the Services.
Processor shall take commercially reasonable steps to limit access to Personal Data to only Authorized Employees.
Controller acknowledges and agrees that Processor may (1) engage its affiliates and the Authorized Sub-Processors List, available at lp.chartbeat.com/subprocessors, to access and Process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the Processing of Personal Data. By way of this Addendum, Controller provides general written authorization to Processor to engage sub-processors as necessary to perform the Services.
A list of Processor’s current Authorized Sub-Processors (the “List”), available at lp.chartbeat.com/subprocessors. Such List which may be updated by Processor from time to time. The List provides a mechanism to subscribe to notifications of new Authorized Sub-Processors and Controller agrees to subscribe to such notifications where available. At least ten (10) days before enabling any third party other than Authorized Sub-Processors to access or participate in the Processing of Personal Data, Processor will add such third party to the List. Controller may reasonably object to such an engagement on legitimate grounds by informing Processor in writing within ten (10) days of receipt of the aforementioned notice by Controller. Controller acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Processor from offering the Services to Controller.
If Controller reasonably objects to an engagement in accordance with Section 4.2, and Processor cannot provide a commercially reasonable alternative within a reasonable period of time, Processor may terminate this Addendum. Termination shall not relieve Controller of any fees owed to Processor under the Agreement.
If Controller does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Processor, that third party will be deemed an Authorized Sub-Processor for the purposes of this Addendum.
Processor will process data in accordance with a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Processor under this Addendum with respect to the protection of Personal Data. In case an Authorized Sub-Processors fails to fulfill its data protection obligations under such written agreement with Processor, Processor will remain liable to Controller for the performance of the Authorized Sub-Processor’s obligations under such agreement.
Where transfers of Personal Data are being made under the Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Controller’s prior written consent to the subcontracting by Processor of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Processor to Controller pursuant to Clause 5(j) of the Standard Contractual Clauses may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Processor beforehand, and that such copies will be provided by the Processor only upon request by Controller.
Security of Personal Data. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Processing Personal Data.
Transfers of Personal Data
The parties agree that Processor may transfer Personal Data processed under this Addendum outside the European Economic Area (“EEA”) or Switzerland, and outside of Brazil or other territories encompassed by the Data Protection Laws, as necessary to provide the Services. If Processor transfers Personal Data protected under this Addendum to a jurisdiction for which the European Commission or the appropriate Data Protection Authority has not issued an adequacy decision, Processor will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
Where required, any transfer of Personal Data made subject to this Addendum to any countries which do not ensure an adequate level of data protection shall be undertaken by Processor through the Standard Contractual Clauses set forth in Exhibit B to this Addendum.
If transfers are made pursuant to 6.2, Processor shall maintain compliance with respect to the Processing of Personal Data transferred from member states of the EEA or Switzerland to any countries which do not ensure an adequate level of data protection within the meaning of the laws and regulations of the foregoing countries for the duration of the Addendum.
Rights of Data Subjects
Processor shall, to the extent permitted by law, notify Controller upon receipt of a request by a Data Subject (which it can determine is one of Controller’s website visitors) to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision-making and to exercise any other rights provided in applicable extra-territorial legislations (such requests individually and collectively “Data Subject Request(s)”). If Processor receives a Data Subject Request in relation to Controller’s data, Processor will advise the Data Subject to submit their request to Controller and Controller will be responsible for responding to such request within the applicable deadline, including, where necessary, by using the functionality of the Services. Controller is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of Processing, or withdrawal of consent and other rights to Processing of any Personal Data are communicated to Processor, and for ensuring that a record of consent to Processing is maintained with respect to each Data Subject.
Processor shall, at the request of the Controller, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Controller in complying with Controller’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Controller is itself unable to respond without Processor’s assistance and (ii) Processor is able to do so in accordance with all applicable laws, rules, and regulations. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
Actions and Access Requests
Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance where necessary for Controller to comply with its obligations under the GDPR or under applicable Data Protection Laws to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Controller does not otherwise have access to the relevant information. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance with respect to Controller’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by applicable Data Protection Laws . Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
Processor shall maintain records sufficient to demonstrate its compliance with its obligations under this Addendum, and retain such records for a period of three (3) years after the termination of the Agreement. Controller shall, with reasonable notice to Processor, have the right to review, audit and copy such records at Processor’s offices during regular business hours.
Upon Controller’s request, Processor shall, no more than once per calendar year, either (i) make available for Controller’s review copies of certifications or reports demonstrating Processor’s compliance with prevailing data security standards applicable to the Processing of Controller’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Controller or its authorized representative, upon reasonable notice and at a mutually agreeable date and time, and conditioned upon all adequate confidentiality obligations, to conduct an audit or inspection of Processor’s data security infrastructure and procedures that is sufficient to demonstrate Processor’s compliance with its obligations under this Addendum, provided that Controller shall provide reasonable prior notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Processor’s business. Controller shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Processor for any time expended for on-site audits. Where transfers of Personal Data are being made under the Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with this Section 8.4.
Processor shall immediately notify Controller if an instruction, in the Processor’s opinion, infringes the Data Protection Laws or Supervisory Authority.
In the event of a Personal Data Breach, Processor shall, without undue delay, inform Controller of the Personal Data Breach and take such steps as Processor in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Processor’s reasonable control).
In the event of a Personal Data Breach, Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance necessary for Controller to comply with its obligations under the GDPR and any applicable Data Protection Law with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
The obligations described in Sections 8.5 and 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Controller. Processor’s obligation to report or respond to a Personal Data Breach under Sections 8.5 and 8.6 will not be construed as an acknowledgement by Processor of any fault or liability with respect to the Personal Data Breach.
CCPA. The terms “personal information,” “service provider,” “sale,” and “sell”, as used in this Section 10, are as defined in Section 1798.140 of the CCPA. The parties acknowledge and agree that Processor is a service provider for the purposes of the CCPA. Processor shall not sell any personal information received from Controller that is subject to the CCPA and will not retain, use or disclose any such personal information except as necessary for the specific purpose of performing the Services as set forth in the Agreement with Controller, or otherwise as set forth in the Agreement or permitted by the CCPA. Processor certifies that it understands the rules, restrictions, requirements and definitions of the CCPA.
Details of Processing
Subject Matter of Processing:
Chartbeat processes information about visitors to your website in connection with the Service it provides to you and also processes your employee/user information in connection with their use of the Service.
Nature and Purpose of Processing:
Chartbeat is processing data in order to help you understand what is happening on your website at any given moment.
Categories of Personal Data:
Categories of Data Subjects:
Duration of Processing:
For the duration of the Agreement.
Standard Contractual Clauses
For the purposes of the GDPR for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
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 Exhibit A of this Addendum.
For the purposes of the Clauses:
'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;
'the data exporter' means Controller and any Controller affiliate;
'the data importer' means Processor and any Processor affiliate;
'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;
'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;
'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.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Exhibit A of this Addendum, which forms an integral part of the Clauses.
Third-party beneficiary clause
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.
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.
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.
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:
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;
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;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Exhibit B to this contract;
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;
that it will ensure compliance with the security measures;
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;
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;
to make available to the data subjects upon request a copy of the Clauses, with the exception of Exhibit B, 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;
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
that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
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;
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;
that it has implemented the technical and organisational security measures specified in Exhibit B before processing the personal data transferred;
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;
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;
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;
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 Exhibit B 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;
that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
that the processing services by the subprocessor will be carried out in accordance with Clause 11;
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
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.
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.
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
to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
to refer the dispute to the courts in the Member State in which the data exporter is established.
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
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.
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.
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 Member 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.
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 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 agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
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.
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.
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
For the purposes of the Clauses:
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
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.
Details of Processing
Subject Matter of Processing:
Chartbeat processes information about visitors to your website in connection with the Service it provides to you and also processes your employee/user information in connection with their use of the Service.
Nature and Purpose of Processing:
Chartbeat is processing data in order to help you understand what is happening on your website at any given moment.
Categories of Personal Data:
Categories of Data Subjects:
Duration of Processing:
For the duration of the Agreement and for 90 days after termination of performance of the Services under the Agreement.
Chartbeat Security Standards
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):