Last Updated: 8/27/2021
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.
As a Customer, you agree to the following:
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.
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.
Joint Controller Responsibilities. Where the parties act as Joint Controllers, each agrees to the following:
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.
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.
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.
Each Joint Controller will assist the other with data subject requests, including access and deletion, where appropriate and required by applicable law.
Each Joint Controller will notify the other without undue delay of any breach affecting Personal Data.
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 set out in the European Commission Decision (2004/915/EC), and any amendments or successors to the same. The Standard Contractual Clauses are included in Exhibit A to this Agreement and shall be incorporated as part of this Agreement upon execution by the Customer and Captiv8.
DISCLAIMER OF WARRANTIES
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.
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.
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.
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.
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.
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.
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.
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.
“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.
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.
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.
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.
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.
LIMITATION OF LIABILITY
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.
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.
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.
Notices. All notices provided under this Agreement to Captiv8 shall be sent in writing by mail and e-mail as follows:
217 S B Street Suite 1
San Mateo, CA 94401
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.
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.
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.
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.
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.
Late Fees. Late fees shall accrue at the rate of 1.5% per month, compounded daily, on any amounts that are past-due hereunder.
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.
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.
Controller to Controller Transfer Clauses
For the purposes of the clauses:
“personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
“the data exporter” shall mean the controller who transfers the personal data;
“the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
“clauses” shall mean these contractual clauses, which comprise a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
DETAILS OF THE TRANSFER
The details of the transfer (as well as the personal data covered) are specified in Appendix B, which forms an integral part of the clauses.
I. OBLIGATIONS OF THE DATA EXPORTER
The data exporter warrants and undertakes that:
The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. OBLIGATIONS OF THE DATA IMPORTER
The data importer warrants and undertakes that:
It will have in place appropriate technical and organizational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
It will have in place procedures so that any third party it authorizes to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorized or required by law or regulation to have access to the personal data.
It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
It will process the personal data for purposes described in Appendix B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
It will identify to the data exporter a contact point within its organization authorized to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfill its responsibilities under clause III (which may include insurance coverage).
Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
It will process the personal data, at its option, in accordance with:
the data protection laws of the country in which the data exporter is established, or
the relevant provisions of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorization or decision and is based in a country to which such an authorization or decision pertains, but is not covered by such authorization or decision for the purposes of the transfer(s) of the personal data , or
the data processing principles set forth in Appendix A.
Data importer to indicate which option it selects: (iii)
Initials of data importer: Customer and Captiv8
It will not disclose or transfer the personal data to a third party data controller located outside the EEA unless it notifies the data exporter about the transfer and
the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the European Union, or
data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.
III. LIABILITY AND THIRD PARTY RIGHTS
Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
IV. LAW APPLICABLE TO THE CLAUSES
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
V. RESOLUTION OF DISPUTES WITH DATA SUBJECTS OR THE AUTHORITY
In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
In the event that:
the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs.
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. VARIATION OF THESE CLAUSES
The parties may not modify these clauses except to update any information in Appendix B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. DESCRIPTION OF THE TRANSFER
The details of the transfer and of the personal data are specified in Appendix B. The parties agree that Appendix B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional Appendixes to cover additional transfers, which will be submitted to the authority where required. Appendix B may, in the alternative, be drafted to cover multiple transfers.
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.
DATA PROCESSING PRINCIPLES
Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Appendix B or subsequently authorized by the data subject.
Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
Security and confidentiality: Technical and organizational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the Personal Data about them that an organization holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organizations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the Personal Data about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organization may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
i. such decisions are made by the data importer in entering into or performing a contract with the data subject, and
ii. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
where otherwise provided by the law of the data exporter.
DESCRIPTION OF THE TRANSFERS (CONTROLLER TO CONTROLLER)
This Appendix B forms part of the Controller to Controller Transfer Clauses (Exhibit A) and must be completed and signed by the Parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
Data exporter and data importer
Where Personal Data is transferred from Customer to Captiv8, the Data Exporter is Customer and the Data Importer is Captiv8 in relation to the Personal Data processed in accordance with this Agreement.
Where Personal Data is transferred from Captiv8 to Customer, the Data Exporter is Captiv8 and the Data Importer is Customer in relation to the Personal Data processed in accordance with this Agreement.
The personal data transferred concern the following categories of data subjects (please specify):
Categories of data
The personal data transferred concern the following categories of data (please specify):
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
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
Health information, such as dietary needs or preferences
The personal data transferred will be subject to the following basic processing activities (please specify):
The objective of Processing of Personal Data by the data importer is the performance of the Service pursuant to the Agreement.