Terms of Service

Last Updated: December 6, 2021

Please carefully read these Terms of Service (collectively, the “Terms” or sometimes, the “Agreement”). By using any of the services on the Captiv8 platform (“Services”), you (“you” or “Customer”) agree to these Terms. The effective date of these Terms as applicable to you is the earlier of the date on which you begin using our Services or the date on which you agree to these Terms, including by clicking “accept” when you register for or use our Services. These Terms, as may be amended by Captiv8 from time to time, remain in effect for the duration of your use of the Services.

The Terms of the Captiv8 Platform Master Software as a Service Agreement separately signed by you are hereby incorporated by reference. To the extent that these Terms conflict with the terms of the Captiv8 Platform Master Software as a Service Agreement, the terms of the Captiv8 Platform Master Software as a Service Agreement shall control. Any capitalized terms used in these Terms shall have the same meaning as such terms are defined in the Captiv8 Platform Master Software as a Service Agreement.

These Terms of Service further incorporate by reference the Captiv8 privacy policy posted at https://captiv8.io/policy/ (the “Privacy Policy”), which also may be amended from time to time.

As a Customer, you agree to the following:

  1. DATA PROTECTION

  1. Applicable Data Protection Laws. Captiv8 and Customer each agree to process Personal Data in accordance with applicable data protection laws, including, as applicable, the EU General Data Protection Regulation (“GDPR”) (Regulation (EU) 2016/679) where either party processes or transfers Personal Data of Individuals located in the European Economic Area (“EEA”), the United Kingdom (“UK”) or Switzerland to the other party. “Personal Data” for purposes of this Section 1 shall mean any information that relates to an identified or identifiable person or household, or that otherwise is treated as personally identifying information under any applicable data protection law.

  1. The Parties’ Roles. In connection with the Service, the parties agree that Captiv8 and Customer each process Personal Data collected and used in connection with the Service as Joint Controllers where each Joint Controller directs its own processing of such Personal Data, including data collection and processing related to the Service provided under this Agreement.

  1. Joint Controller Responsibilities. Where the parties act as Joint Controllers, each agrees to the following:

    1. Each Joint Controller will implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

    2. Each Joint Controller determines its own purposes and manner of processing Personal Data and each is responsible for providing appropriate notice to data subjects regarding its respective data protection practices.

    3. Each Joint Controller will treat Personal Data received from the EEA, the UK and Switzerland, in accordance with GDPR and the legislation implementing GDPR (or its equivalent or successor) in the EEA, UK and Switzerland.

    4. Each Joint Controller will assist the other with data subject requests, including access and deletion, where appropriate and required by applicable law.

    5. Each Joint Controller will notify the other without undue delay of any breach affecting Personal Data.

  1. Cross-Border Data Transfers. Because it is possible that Personal Data collected in the EEA, UK or Switzerland may be transferred to a non-adequate jurisdiction outside of the EEA, UK or Switzerland in connection with this Agreement, the parties agree to enter into standard contractual clauses for the transfer of personal data from controllers in the EEA, UK or Switzerland to controllers established in third countries as required under of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). The Standard Contractual Clauses for transfers of personal data from the EEA and Switzerland are included in Exhibit A to this Agreement and shall be incorporated as part of this Agreement upon execution by the Customer and Captiv8. For transfers from the UK, the Standard Contractual Clauses as originally set out in the European Commission Decision (2004/915/EC), and any amendments or successors to the same, are hereby incorporated in this agreement by reference.

  1. DISCLAIMER OF WARRANTIES

    1. All Services Provided AS IS.  To the maximum extent allowed under applicable law, the Platform and all services provided thereon or in connection therewith are provided “AS IS,” without warranty of any kind whatsoever. Without limiting the generality of Section 6(a), Customer acknowledges and agrees that it is relying solely at its own risk on any recommendations, suggestions or information provided by Captiv8, and that Captiv8 is not responsible for any such reliance by the Customer. Customer is solely responsible for all decisions that it makes and all of its acts or omissions relating to any Campaign.

    2. Agreements with Influencers and Others. Solely for the convenience of its customers, Captiv8 provides one or more forms of agreement that its customers may use to retain Influencers for Campaigns but Customer is not required to use such form agreements and instead it is free to use any agreement that complies with these Terms. For the avoidance of doubt, Captiv8 provides no legal advice whatsoever and makes no warranties whatsoever regarding the effect, meaning or enforceability of, or otherwise regarding, any such form of agreement and Customer proceeds at its own risk. Customer should consider retaining and asking its own legal counsel to review any agreement relating to any Campaign.

  2. INDEMNIFICATION

    1. By Captiv8. Captiv8 shall, at its sole expense and using counsel reasonably acceptable to Customer, defend Customer and its members, managers, directors, officers, representatives, employees and agents from and against any Claim to the extent that such Claim (i) is based directly on Captiv8’s breach of this Agreement, recklessness or willful misconduct or (ii) alleges that the Platform infringes any intellectual property right of any person.

    2. By Customer. Customer shall, at its sole expense and using counsel reasonably acceptable to Captiv8, defend Captiv8 and its members, managers, directors, officers, representatives, employees and agents from and against any Claim, other than any Claim that Captiv8 is obligated to defend under Section 3(a), to the extent that such Claim is based on or relates to Customer’s use of the Platform or any Campaign, including, but not limited to, any Claim (i) that any Campaign, including, without limitation, any Paid Media, infringes, misappropriates, dilutes or otherwise violates any intellectual property right (including, without limitation, any copyright, trademark or trade secret right), any right of publicity, right of privacy or other right of any person, (ii) that any Campaign violates any law or regulation, including, without limitation, any Federal Trade Commission Endorsement Guides or other guidance regarding Influencers or any laws regarding Personal Data and privacy, (iii) by any Influencer or other person arising out of any Campaign or otherwise out of Customer’s use of the Platform or (iv) by any purchasers or users of any of Customer’s products or services.

    3. Process. With respect to any Claim, the party that is obligated to defend the other under this Section 3 (the “Indemnifying Party”) shall pay any final judgment awarded with respect to or settlement of such Claim, provided that the party that seeks such defense hereunder (the “Indemnified Party”) promptly notifies the Indemnifying Party of the Claim, tenders sole control of the defense and settlement thereof to the Indemnifying Party and reasonably cooperates with the Indemnifying Party, at the Indemnifying Party’s expense, in such defense. The Indemnified Party may participate in any such defense with counsel of its choosing at its expense. Notwithstanding the foregoing, the Indemnifying Party shall not settle any Claim without the Indemnified Party’s prior consent, such consent not to be unreasonably withheld, delayed or conditioned. Notice of any Claim shall be deemed to have been provided promptly unless any delay in providing such notice substantially prejudices the Indemnifying Party.

  3. DISPUTE RESOLUTION

    1. Binding Arbitration. Customer and Captiv8 agree that any and all past, present and future Disputes related in any way to this Agreement shall be determined by arbitration in San Francisco, California, pursuant to the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), including the question of whether the matter is subject to arbitration. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of an arbitration demand, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The award of the arbitrator may be entered in any court located in California having jurisdiction.

    2. No Class Arbitrations. Customer and Captiv8 agree that, notwithstanding anything to the contrary in the Rules, the arbitration of any Dispute shall proceed on an individual basis, and neither Customer nor Captiv8 may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Captiv8 will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

      1. Waiver. To the maximum extent permitted by applicable law, neither Customer nor Captiv8 shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities, or arbitrate or litigate any dispute relating in any way to this Agreement in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any dispute, any and all such rights are hereby expressly and unconditionally waived. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by the arbitrator.

  4. CONFIDENTIAL INFORMATION

    1. Definitions.

      1. Confidential Information” means the trade secret or other confidential information of a party that is or has been disclosed to the other party, orally or in writing, including, without limitation, any such information of which the Party receiving the disclosure may obtain knowledge through or as a result of the relationship with the disclosing party, access to the disclosing Party’s premises or communication with the disclosing Party’s employees or independent contractors, including any such information that is designated as confidential at the time of disclosure or that should, under the circumstances, be understood to be confidential by the Parties.

      2. For all purposes of this Agreement, (i) Captiv8 will be referred to as “Discloser” with respect to its Confidential Information and “Recipient” with respect to Confidential Information of Customer, and (ii) Customer will be referred to as “Discloser” with respect to its Confidential Information and “Recipient” with respect to Confidential Information of Captiv8.

      3. Notwithstanding any other provision hereof, Confidential Information shall not include information that Recipient shows (i) is now or later becomes generally known to the trade (other than as a result of a breach of this Agreement), (ii) is independently developed by Recipient without reference to any information supplied by Discloser or (iii) is lawfully obtained by Recipient from any third party without restriction on use or disclosure.

    2. No Unauthorized Use or Disclosure. Recipient agrees not to use any of the Confidential Information of Discloser for any purpose at any time, other than for the purpose of exercising its rights and performing its obligations under this Agreement (the “Purpose”). Recipient shall at all times hold in confidence and not disclose or reveal to any person or entity any such Confidential Information without the clear and express prior written consent of a duly authorized representative of Discloser. Recipient shall at all times protect the confidentiality of such Confidential Information using at least such care as Recipient uses to protect its own confidential and proprietary information of like importance, but in no event less care than a prudent business person would employ under similar circumstances. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent reasonably required in connection with the Purpose, provided that any such disclosure is made (i) solely with and subject to Discloser’s prior written consent, not to be unreasonably withheld, delayed or conditioned, and (ii) subject to written obligations of confidentiality that are at least as protective of the Confidential Agreement as this Agreement.

    3. Subpoena. If Recipient is served with a subpoena or similar order, interrogatories, requests for information or documents, civil investigative demand or other order or process which seeks to compel the production of Confidential Information, Recipient shall, to the extent permitted under applicable law, promptly notify Discloser in writing thereof. The Parties shall then cooperate with one another for the purpose of obtaining such relief as will protect the Confidential Information. Should either Party file any timely motion for a protective order or similar motion with respect to the Confidential Information, Recipient shall not comply with such subpoena or similar order, interrogatories, requests for information or documents, civil investigative demand or other order or process until after such time as the court rules on such motion. Recipient shall protect the Confidential Information to the maximum extent possible consistent with such ruling.

  5. LIMITATION OF LIABILITY

    1. Exclusion of Certain Remedies. Neither Captiv8 nor its affiliates nor its or its affiliates’ licensors, suppliers or service providers nor any of their respective officers, directors, owners, employees, agents, suppliers or representatives (collectively, the “Captiv8 Parties”) will be liable for any special, incidental, consequential or exemplary damages, including, but not limited to, damages for loss of use or lost profits, arising out of or in connection with (i) the Platform or its use, (ii) any Campaign, or (iii) this Agreement, even if Captiv8 or any other Captiv8 Party has been advised of the possibility of such damages.

    2. Liability Cap. In no event will the aggregate liability of the Captiv8 Parties for any claims relating to the Platform or its use, to any Campaign, or to this Agreement, whether sounding in contract, tort or any other theory of liability, exceed, in the aggregate for all claims, the aggregate payments that Captiv8 receives under this Agreement during the one hundred eighty (180) day period before such liability first accrues.

    3. Exceptions. This Section 6 shall not apply to, and shall not exclude any damages or other remedies for or limit any liability arising under any claim of trade secret misappropriation, copyright infringement, right of privacy violation or other infringement or violation of any intellectual property or proprietary right.

  6. MISCELLANEOUS

    1. Notices. All notices provided under this Agreement to Captiv8 shall be sent in writing by mail and e-mail as follows:

Captiv8, Inc.
217 S B Street Suite 1
San Mateo, CA 94401
E-Mail: 
hello@Captiv8.io

Notices sent by Captiv8 to Customer shall be addressed to the Customer Primary Point of Contact at the email address or physical address set forth in the Captiv8 Platform Master Software as a Service Agreement. Notices shall be deemed to be effective when actually received by the addressee.

    1. Entire Agreement. This Agreement constitutes the entire agreement between Captiv8 and Customer with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications relating to such subject matter. Except as otherwise provided herein, this Agreement shall not be amended except by a writing executed by both Parties.

    2. Waiver. No waiver of any provision of this Agreement or any rights or obligations of either Party hereunder shall be effective, except pursuant to a written instrument signed by the Party or Parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.

    3. Governing Law. Except as otherwise provided herein, this Agreement shall be construed and enforced in accordance with the laws of the state of California irrespective of any choice of law rules.

    4. Severability. Except as otherwise expressly herein, if all or part of any provision of this Agreement shall be deemed invalid or unenforceable under applicable law, such provision, or the invalid or unenforceable part thereof, shall be deemed stricken from this Agreement, and the remainder of this Agreement shall continue in full force and effect.

    5. Late Fees. Late fees shall accrue at the rate of 1.5% per month, compounded daily, on any amounts that are past-due hereunder.

    6. Taxes. Customer shall pay any sales, use, excise, value added or other tax accruing with respect to any payments made hereunder, but excluding any taxes based on Captiv8’s net income.

    7. Price Modifications and Related Changes.  Prices hereunder shall be fixed for the duration of the Initial Term. No price modifications or increases are allowed without prior notice to Customer. If Captiv8 provides notice at least 45 days before the end of the Initial Term or the then-current Renewal Term (as the case may be), Captiv8 may increase or otherwise modify the Platform Fee, Transaction Fee and Paid Media Fee, and any such modifications will be effective as of the commencement of the Renewal Term.

EXHIBIT A

Controller to Controller Transfer Clauses

Clause 1

Purpose and scope

  1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.

  2. The Parties:

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

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

have agreed to these standard contractual clauses (hereinafter: “Clauses”).

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

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

Clause 2

Effect and invariability of the Clauses

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

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

Clause 3

Third-party beneficiaries

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

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

    2. Clause 8.5 (e) and Clause 8.9(b);

    3. Clause 12(a) and (d);

    4. Clause 13;

    5. Clause 15.1(c), (d) and (e);

    6. Clause 16(e);

    7. Clause 18(a) and (b).

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 – Optional

Docking clause

  1. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

  2. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

  3. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

    1. Purpose limitation

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

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

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

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

    1. Transparency

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

    1. of its identity and contact details;

    2. of the categories of personal data processed;

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

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

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

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

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

    1. Accuracy and data minimisation

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

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

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

    1. Storage limitation

The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation1 of the data and all back-ups at the end of the retention period.

    1. Security of processing

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

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

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

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

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

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

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

    1. Sensitive data

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

    1. Onward transfers

The data importer shall not disclose the personal data to a third party located outside the European Union2 (in the same country as the data importer or in another third country, hereinafter “onward transfer”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:

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

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

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

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

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

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

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

    1. Processing under the authority of the data importer

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

    1. Documentation and compliance

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

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

Clause 9 – Not Applicable

Use of sub-processors

Clause 10

Data subject rights

  1. The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request.3 The data importer shall take appropriate measures to facilitate

such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.

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

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

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

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

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

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

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

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

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

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

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

Clause 11

Redress

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

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

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

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

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

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

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

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

Clause 12

Liability

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

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

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

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

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

Clause 13

Supervision

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

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

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

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

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

Clause 14

Local laws and practices affecting compliance with the Clauses

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

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

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

    2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards4;

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

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

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

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

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

Clause 15

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

    1. Notification

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

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

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

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

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

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

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

    1. Review of legality and data minimisation

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

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

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

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

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

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

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

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

    3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

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

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

Clause 17

Governing law

[OPTION 1: These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of (specify Member State).]

Clause 18

Choice of forum and jurisdiction

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

  2. The Parties agree that those shall be the courts of Ireland. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

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

You, the Customer, hereby agree that by agreeing to the Captiv8 Platform Terms of Service, you additionally agree to this Exhibit A as both a Data Importer and Data Exporter.

Captiv8 agrees that by allowing you to use the Services as defined in the Captiv8 Platform Terms of Service, it agrees to this Exhibit A as both a Data Importer and Data Exporter. 

The effective date of these Clauses as applicable to you is the earlier of the date on which you begin using our Services or the date on which you agree to the Captiv8 Platform Terms of Service, including by clicking “accept” when you register for or use our Services.

APPENDIX

ANNEX I

    1. LIST OF PARTIES

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

1. Name: Captiv8, Inc.

Address: Captiv8, Inc. 217 S B Street Suite 1 San Mateo, CA 94401

Contact person’s name, position and contact details:

Sunil Verma, Co-Founder, sunil@captiv8

Activities relevant to the data transferred under these Clauses:

Data collection and processing related to provision of services under the Captiv8 Terms of Service.

Signature and date: This agreement is deemed to be signed and executed by Captiv8, Inc. as of date on which the Customer begins using Captiv8’s services.

Role (controller/processor): Controller

2. Name: The Customer of Captiv8 that agrees to the Captiv8 Terms of Service.

The name and contact details for the data exporter (the Customer that agreed to these Captiv8 Terms of Service) was provided by the Customer in the Captiv8 platform registration process.

Activities relevant to the data transferred under these Clauses:

Data collection and processing related to provision of services under the Captiv8 Terms of Service.

Signature and date: This agreement is deemed to be signed and executed by Customer as of date on which the Data Importer begins using Captiv8’s services.

Role (controller/processor): Controller

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

1. Name: Captiv8, Inc.

Address: Captiv8, Inc. 217 S B Street Suite 1 San Mateo, CA 94401

Contact person’s name, position and contact details:

Sunil Verma, Co-Founder, sunil@captiv8

Activities relevant to the data transferred under these Clauses:

Data collection and processing related to provision of services under the Captiv8 Terms of Service.

Signature and date: This agreement is deemed to be signed and executed by Captiv8, Inc. as of date on which the Customer begins using Captiv8’s services.

Role (controller/processor): Controller

2. Name: The Customer of Captiv8 that agrees to the Captiv8 Terms of Service.

The name and contact details for the data importer (the Customer that agreed to these Captiv8 Terms of Service) was provided by the Customer in the Captiv8 platform registration process.

Activities relevant to the data transferred under these Clauses:

Data collection and processing related to provision of services under the Captiv8 Terms of Service.

Signature and date: This agreement is deemed to be signed and executed by Customer as of date on which the Data Importer begins using Captiv8’s services.

Role (controller/processor): Controller

1. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

  • Customer employees

  • Consumers/influencers

Categories of personal data transferred

  • First and last name

  • Contact information (company, email, phone, cell phone, physical address)

  • Personal identifiers, including user ID associated with a user’s account

  • Employment data, including title and employment history

  • Internet or network activity data

  • Data collected from linked social media pages

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

  • Health information, such as dietary needs or preferences

  • Race

  • Ethnicity

  • Citizenship

  • Nationality

  • Sexual Orientation

  • Gender

  • Gender Identity

  • Disabilities

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

  • Continuous basis as needed for the duration of the relationship between Captiv8 and Customer.

Nature of the processing

  • Process the personal data of Customers and Creators through the Captiv8 platform.

Purpose(s) of the data transfer and further processing

  • To process the personal data of Customers and Creators on the Captiv8 platform, which is located in the U.S.

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

  • For the period of the Agreement between Customer and Captiv8 and then so long as needed for business and archiving purposes.

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

  • Subprocessors will only process personal data on Captiv8’s behalf to provide services and support to Captiv8 and the operation of its platform.

    1. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

The Ireland Data Protection Commission

ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

  1. Implements appropriate organization, technical and administrative controls for all personal data that importer processes.

  1. Implements logical access security software, infrastructure, and architectures over protected information assets to protect them from security events

  1. Prior to issuing system credentials and granting system access, the data importer registers and authorizes new internal and external users. User system credentials are removed by data importer when user access is no longer authorized.

  1. Encrypts or pseudonymizes personal data where possible to protect the data that it transfers and stores. Where encryption or pseudonymization are not possible, implements alternative, equivalent controls to protect the data.

  1. Restricts access to all personal data to only those employees or subprocessors who have a need to know or access the data.

  1. Restricts physical access to its facilities and protected information assets (for example, data center facilities, back-up media storage, and other sensitive locations) to authorized personnel.

  1. Implements logical access security measures to protect against threats from sources outside its system boundaries.

  1. Restricts the transmission, movement, and removal of information to authorized internal and external users and processes, and protects it during transmission, movement, or removal.

  1. Implements controls to prevent or detect and act upon the introduction of unauthorized or malicious software.

  1. Monitors system components and the operation of those components for anomalies that are indicative of malicious acts, natural disasters, and errors affecting the data importers ability to meet its objectives; anomalies are analyzed to determine whether they represent security events.

  1. Responds to identified security incidents by executing a defined incident response program to understand, contain, remediate, and communicate security incidents, as appropriate.

  1. Identifies, develops, and implements activities to recover from identified security incidents.

  1. Assesses and manages risks associated with its vendors and business partners and executes required agreements and data transfer provisions where required by applicable law.

  1. Deletes or destroys data in accordance with internal records retention policies or as soon as no longer needed for business purposes.

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter.

  • Processors and subprocessors shall implement security measures at least as strict as provided in this Annex for the Data Importer.

1 This requires rendering the data anonymous in such a way that the individual is no longer identifiable by anyone, in line with recital 26 of Regulation (EU) 2016/679, and that this process is irreversible.

2 The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

3 That period may be extended by a maximum of two more months, to the extent necessary taking into account the complexity and number of requests. The data importer shall duly and promptly inform the data subject of any such extension.

4 As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.