General Terms & Conditions
(version 1 of May 2022)
SUBJECT AND DEFINITIONS
1.1 The present general terms and conditions (hereinafter the “T&C”) contain the terms and conditions governing the provision of services by Webranking S.r.l. (hereinafter “W ”, “We” or “the Company”), an Italian company, with registered offices in Italy (Correggio (RE), Via Oratorio 12/A – 42015), and, in particular, the licence of the Software as a service (SaaS) called Data Kojak (hereinafter, “Software” or “Data Kojak”). The T&C are stipulated among you, as the end user of the services (hereinafter referred to as “you” or “the User”) and the Company. The Software is a tracking control and management solution that preserves data quality by reducing verification errors and cuts checking time.
1.2 In addition to the terms and words defined elsewhere in the T&C, in reference to such, they shall be defined as:
“Business Days” the hours of 9.00 am to 6.00 pm in any working day in Italy;
“Data Protection Laws” it refers to any legislation, rules, law and/or regulation relating to personal data and/or personal information protection, already in force or that will enter into force after the T&C comes into force, including the provisions of the competent data protection authorities, supervisory authorities and/or any other competent authorities issued in implementation of the said legislation;
“Party” W or the User;
“User’s Sites” the website(s) that the User intends to manage through the Software, whether owned and/or managed and/or licensed by the User, of which the User has lawful availability to administer.
1.3 The singular terms have the same meaning for the plural and vice versa. Masculine terms have the same meaning for feminine and neutral and vice versa.
1.4 Any reference, either express or implied, to statutes or legislative provisions shall be deemed as referring to such statute or legislative provision as modified by other provisions (before or after the date of conclusion of this T&C) and shall include any provision, decree, regulation, resolution or other form of secondary legislation deriving from such statute or legislative provision.
1.5 The titles of the articles are indicated strictly for convenience and will not affect the interpretation of this T&C.
CONCLUSION OF THE T&C
2.1 Please note that by pressing the “Place Order” button upon registration in the W ’s website www.datakojak.com/us (hereinafter, “W Site”) or, otherwise, accepting a personalized written offer – where there is a reference to this T&C and/or where a link to this T&C is placed – sent to the User by W upon written request by the User (such as, by way of example, but without limitation, if the User contacts the Company through the contact section of the W Site), you declare that you have read and expressly accept these T&C.
2.2 Registration to the W Site and the consequent use of Software follow the costs outlined in Article 3.4 below (save the costs of Internet connection, which are borne by the User on the basis of the economic conditions established by his/her operator). If you do not intend to accept one of the terms and conditions of these T&C, we respectfully ask that you not use the Software and exit the W Site.
W SERVICES
3.1 REGISTRATION. The User registers by filling out all the fields of the registration form available in the W Site or by requiring W , through the contact section of the W Site to send a personalized written offer for the use of the Software and, in the latter case, the registration to the service can be done by filling out all the fields of the written offer and sending it to W to the e-mail address indicated by W itself (hereinafter, “Registration”).
In any case, the User must provide company name, street address, town/city, zip code, state, country/region, first name and last name, phone, email address, billing details and address any other information indicated as mandatory.
After the Registration, when completed with what is provided for in the following Article 3.4, the User will be contacted by email by W within 15 (fifteen) Business Days in order to schedule a 2 (two) hour phone call in order to provide the User with information necessary to set up the Software to be used in the User’s Sites (hereinafter, “Set-Up”)
3.2 SET-UP. In order to complete the Set-Up, the User has to link the User’s Sites to the Software and to include a Javascript code supplied by W on the User’s Sites as well as has to comply with all the technical requirements for use of the Software communicated by W to the User. If the User executes all the requirements indicated by W, W will have no liability to User for such inability to provide the Software, if such inability is a result of User’s failure to comply with this Article 3.2.
3.3 SOFTWARE.
3.3.1 Upon Registration, completion of the Set-Up and payment of the Subscription, as established under Article 3.4 below, the User may start using the Software and benefit from the W ’s connected services. The User expressly acknowledges and agrees that in order to use the Software, the User must always, and in any case, login with the assigned credentials, that will be sent by W to the User.
3.3.2 Under this T&C, W grants the User a non-exclusive and non-transferable license to use the Software, of which W is the owner of each and any intellectual and industrial property rights. The fee provided for in the following Article 3.4, due by the User in the manner indicated therein, includes the user license referred to in this Article 3.3, concerning the Software whose characteristics are described in the W Site and in this T&C. The User may use the Software only for the duration of the Subscription and the license will automatically terminate upon termination of the Subscription and/or of this T&C, for any reason whatsoever.
3.3.3 The Software facilitates the automated control of the tracking present on the User’s Sites and it automatically collects technical information present on the User’s Sites and publicly identifiable information of the User’s Sites (such as, by way of example, any tracking tools used on the check-out pages of the User’s Sites).
During the Set-Up, the Software may also be connected to the analytics tool(s) used by the User on the User’s Sites, so as to be able to import existing configurations within the Software (by way of example, the mapping of the custom dimensions present on Google Analytics) and also validate the data entered from other sources and not directly available on the User’s Sites. In this case, the information available and potentially used by the Software could include personal information, as available on the analytics tool used by the User and connected to the Software. Any processing of personal information will be carried out by W on behalf of the User, according to Article 6.2 below.
Furthermore, if agreed between the Parties during the Set-Up, the Software may also allow the User a large-scale control of all tracking sent to analytics by the User’s Sites. In this case, W undertakes to provide a script – which the User must insert on the User’s Sites via the tag manager, as explained by W to the User during the Set-Up. The correct implementation of the script by the User will allow the Software to prepare a so-called proxy, that is a listening level that is interposed between the User’s Sites and the analytics platform, and which will allow the Software to detect all calls regarding tracking tools for each visit to the User’s Sites. In this case, the Software may become aware of personal information, sent via tag manager to the Software itself. Any processing of personal information will be carried out by W on behalf of the User, according to Article 6.2 below.
3.3.4 The User acknowledges and expressly accepts that any information, personal or otherwise, collected by the Software used on the User’s Sites will be kept by W for a maximum period of 3 (three) months, after which – unless otherwise agreed in writing with the User – will be deleted by W and no longer available within the Software.
3.3.5 W reserves the right to modify the Software, without additional costs for the User, should such changes prove necessary to improve the security and/or technical reliability of the Software itself.
3.3.6 In case of any technical questions and/or requests the User shall contact W through the following methods: W will process the User’s troubleshooting requests during Business Days, within 72 (seventy-two) hours.
3.4 PAYMENTS AND INVOICING
3.4.1 The User expressly acknowledges and agrees that after the completion of the Registration, the User shall pay W the fee indicated in the W Site or in the written offer sent by W to the User. All the fees shall be paid in dollars. The Software is available only upon payment of the annual subscription fee (hereinafter the “Subscription”). The Subscription begins on the date of receipt of the User’s payment by W .
3.4.2 The User expressly acknowledges and agrees that W has the right to propose – at its sole discretion – any temporary discounts and/or coupons and/or any policy for a price other than those referred to in the W Site at the time of User’s Registration and/or in the written offer sent by W to the User.
3.4.3 The Subscription can be paid by Paypal, credit card or by bank transfer.
The User acknowledges and accepts that the management of payments on the W Site can be delegated to third parties with respect to W (by way of example and not limited to, by PayPal Holdings, Inc.) and therefore payments are governed by the general conditions of such third parties that the User undertakes from now to examine before concluding the purchase.
In case of payment by credit card, at the same time as the online transaction is concluded, the payment gateway of reference will authorize the amount relating to the purchase made. The amount required for the purchase will be charged to the User’s credit card at the time of purchase. The User acknowledges and accepts that at no time during the purchase procedure the Company has access to the information relating to the User’s credit card, transmitted via a secure connection directly to the payment gateway site that manages the transaction and no computer archive. of the Company will keep such data therefore, in this regard, the User renounces from now on to make any claim and/or dispute against the Company, which in no case can be held responsible for any fraudulent and improper use of the credit card of the User by third parties.
3.4.4 The User acknowledges and accepts that the Company reserves the right to request additional information from the User on the User and/or on the payment data entered by them (e.g. identity document or copy of documents proving ownership of the credit card used). In the event that the User does not provide the Company with the aforementioned information, the Company reserves the right not to accept the order relating to the Software.
3.4.6 After the payment of the Subscription, W will send to the User an invoice of the purchase made.
3.5 INTELLECTUAL PROPERTY RIGHTS.
3.5.1 For the purposes of the T&C, “Intellectual Property Rights” shall mean any and all industrial and intellectual property rights, registered or unregistered, including but not limited to registered and de facto trademarks, domain names, technical and commercial know-how, copyrights and rights related such as those relating to databases and computer programs, designs, algorithms, and any other content that may be subject of proprietary rights (including source codes) and/or any other intellectual property right relating to the Software or otherwise connected to the object of the T&C.
3.5.2 The User acknowledges and accepts that the Intellectual Property Rights connected and/or in any case deriving from the T&C including, by way of example and not limited to, those relating to the Software, and current and future functionalities, are and remain exclusively property of W . The T&C does not imply, or imply any transfer of the Intellectual Property Rights to the User who, therefore, may use them exclusively for the license of use covered by this T&C.
3.5.3 The User recognises the validity of the Company’s Intellectual Property Rights and undertakes from now on: i) not to contest it, either directly or indirectly; ii) not to sub-license, modify, alter, contest the validity of one or more Intellectual Property Rights also through, by way of example and not limited to, reverse engineering actions or in any case aimed at making a copy or altering the Software, the current and future functionalities and iii) not to file registration applications relating to Intellectual Property Rights identical and/or similar to those of W . By way of example and not limited to and without limiting the generic nature of the foregoing, the User undertakes as of now not to carry out, directly or indirectly, projects and/or services identical or similar to the Software, and current or future functionalities. The breach of this obligation is to be considered a serious breach for which W may terminate this T&C pursuant to article 1456 of the Italian Civil Code.
3.5.4 The User does not have the right to modify in any way, adapt, translate, transform, decompile, correct, copy, uninstall and/or disassemble, in whole or in part, the Software, nor to create derivative programs, based on the Software. Furthermore, the User does not have and will not have the right to remove, cover or, in any case, alter any copyright notice reported by W on all or part of the Software.
3.5.5 In the event that the User becomes aware of any activities of third parties, including its employees, in violation and/or in any case prejudicial to the Intellectual Property Rights of W , the User undertakes to promptly notify W so that W can use all the necessary tools to protect its Intellectual Property Rights.
3.5.6 The only exception to the foregoing is the possibility for the User to use the name and/or logo of W and of the Software for the duration of the license and under the conditions set out in the T&C and exclusively in relation to the automated tracking present on the User’s Sites.
PARTIES’ STATEMENTS AND GUARANTEES
4.1 USER’S DUTIES AND GUARANTEES. The User declares and guarantees: i) to have read and understood the T&C; ii) to be of legal age and able to act and sign legally binding agreements and, in the case of legal persons, that the individual who accepts this T&C in the name and on behalf of that legal person has the necessary powers to act for the purpose of this T&C and is able to act and sign legally binding agreements for the legal person represented by the User; iii) to be responsible for anything that occurs through the Subscription unless the User terminate the T&C and/or reports any abuse; v) that the User will refrain from reproducing, duplicating, copying, selling, reselling, and otherwise exploiting for any commercial purpose the Software or any part thereof, as well as reproducing or otherwise using the W trademarks and logos unless the User has received express written authorisation by the Company; iv) that any cost, tax, fee, expense and other tax burden arising from these T&C or relating thereof, or the performance of the obligations therein shall be borne by the User; vi) that the User will refrain from any form of direct and/or indirect use of the Software contrary to law or not in accordance with the provisions of these T&C.
Furthermore, the User undertakes: vii) to keep the credentials secure and confidential; viii) not to transfer any portion of the account connected to the Subscription to third parties; ix) not to allow access by any third party – not under the User’s control – to the Software and x) to comply with any applicable law regarding the management of accounts; e) not violate any of the commitments made under this T&C, in particular regarding the processing of personal information of individual who browse the Sites; xi) to comply with Data Protection Laws and with any other applicable legislation regarding the protection of personal data in reference to the User’s Sites.
4.2 The User acknowledge and expressly agree that W provides the Software “as is” and “as available” and hereby disclaims all warranties with respect to the Software, whether express or implied, including warranties of merchantability, and fitness for any particular purpose. W does not warrant that the Software will operate uninterrupted or error-free and it is possible that the Software may be inaccessible, unavailable, or inoperable from time to time.
4.3 W makes no representation or warranty about the result User will obtain through using the Software.
LIABILITY OF THE PARTIES – LIMITATION OF LIABILITY OF W
5.1 COMPLAINTS CONCERNING W ’S INTELLECTUAL PROPERTY RIGHTS. If the User receives a complaint concerning one or more of the Company’s Intellectual Property Rights, the User undertakes to notify the Company within 7 (seven) days of receipt of the complaint so that the Company may defend its Intellectual Property Rights, whether or not in conjunction with those of the User. The User undertakes from now on to cooperate actively, upon the Company’s request, in any proceedings concerning the disputes referred to in this article and/or any disputes concerning the Intellectual Property Rights of the Company, it being understood that any decision thereof remains the Company’s exclusive right. The User acknowledges that the failure to communicate the complaint referred to in this article shall cause serious prejudice to the rights and interests of the Company and therefore undertakes to indemnify and hold the Company harmless from any and all damages, costs or expenses deriving from the User’s violation of this article.
In any case, the User expressly accepts that W cannot be held liable in any way whatsoever (and, consequently, shall be under no obligation to indemnify and/or hold it harmless) if the alleged violation of third-party Intellectual Property Rights resulting from the use, non-use and/or inappropriate use of the Company’s technologies that may be the subject of the Software is: i) due to and/or incurred by unauthorised modifications and/or processing of the Company’s Software, and/or ii) due to and/or incurred by the non-use of updated versions of the Company’s Software, where the use of such updated versions could have avoided or diminished the infringement, and/or iii) due to and/or incurred by the use of the Company’s Software in combination with even a single program, or part of it, other than the Company’s programs, and/or iv) attributable, even if only partially and/or indirectly, to third-party software that forms an integral part of the Company’s Software or that is combined with the Company’s Software.
5.2 LIMITATION OF LIABILITY OF W . Except for the case of wilful misconduct or gross negligence, to the maximum extent permitted by law, the User acknowledges and agrees that W will in no way be liable to the User for any damages, losses, costs, charges and expenses, direct or indirect, including any legal fees that may be incurred and/or borne by the User in connection with the Software provided by W pursuant to the T&C. Therefore, no damages may be claimed by the User to W for any damage suffered in connection with the Software. W will in no way be liable to the User for any delays or defaults on their obligations in relation to the Software in the event that such delays or defaults arise from causes of force majeure.
5.3 LIABILITY OF THE USER. User is solely liable for its compliance with the CCPA (as below defined) and/or in general with Data Protections Laws in its use of the tracking tools on the User’s Site, in its use of the Software as well as of W ’s services. The User hereby undertakes to relieve W of any loss, damage, cost, expense, sanction and other liabilities (including any costs of transactions): i) resulting from the breach of the T&C, the CCPA and/or the Data Protection Laws during the duration of the T&C by the User; and/or ii) in relation to or by virtue of any claim or action by a third party who assumes that the User’s Site, or any part thereof, violates their Intellectual Property Rights.
6. PRIVACY
6.1 PROCESSING OF PERSONAL INFORMATION RELATED TO THE USER. Pursuant to and for the purposes of the applicable Data Protection Laws, W , informing the User, undertakes to ensure that all the data related to the User provided directly by the User or gained by W during the duration of the T&C and connected with the T&C, even that relating to the employees or collaborators of the User, will be processed, by automated or non-automated means, exclusively for management and administrative purposes relating to the contractual and legal obligations. The provision of personal data for management and administrative purposes relating to the contractual and legal obligations is necessary to provide the aforementioned purposes and failure to provide the data will imply, totally or partially, the impossibility to reach the scope. The User can voluntarily provide to W a specific and optional consent to the processing of User’s data for marketing and reception of commercial communication by W : in this case, the User’s email address will be processed by W in order to send the latter communications to the Users. The consent to the reception of marketing and commercial communication is not mandatory. In any case, User’s data will be used by W solely with modalities and procedures necessary to pursuit the aforementioned purposes. W informs the User that has the rights granted by the applicable Data Protection Laws, as explained in the W ’s privacy policy.
6.2 PROCESSING OF PERSONAL INFORMATION RELATED TO VISITORS OF THE USER’S SITES. This article reflects the Parties’ agreement on the processing of Visitors Personal Information in connection with the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq., and related regulations, as may be amended from time to time (hereinafter, “CCPA”). If there is any conflict or inconsistency between the terms of this Article 6.2 and the other clauses of the T&C, the terms of this Article 6.2 will govern if the CCPA applies. Subject to the terms of this Article 6.2 and solely with respect to Visitors Personal Information processed while the Subscription is effective, W will act as User’s service provider, and as such, will not retain, use or disclose Visitors Personal Information, other than on behalf of User and for the specific purpose of performing the services specified under this T&C, and it shall not retain, use, or disclose Visitors Personal Information outside of the direct business relationship between User and W . The provisions of this Article 6.2 are effective solely to the extent the CCPA applies.
6.3 PROCESSING OF PERSONAL DATA RELATED TO VISITORS OF THE USER’S SITES. According to EU Regulation 2016/679 (hereinafter, “GDPR”), to which W is subject, W will process the Visitors Personal Information only on behalf of the User, according to art. 28 GDPR. W , as data processor, is committed to i) processing the Visitors Personal Information for the exclusive purpose of executing the T&C, and within the limits what it was established by it, while strictly adhering to the instructions given by the User; ii) only processing the Visitors Personal Information that is strictly required for a correct and full implementation of the T&C, or to fulfill legal obligations; iii) making sure that its employees and Sub-Suppliers have access and only process the Visitors Personal Information that is strictly required for a full and correct implementation of the T&C, or to fulfill legal obligations; iv) processing the Visitors Personal Information in a lawful manner, according to fairness and in full compliance with the Data Protection Laws. W undertakes to implement the security measures prescribed by GDPR, taking into account the state of the art and the costs of implementation, in order to minimize the potential risks of destruction or voluntary or accidental loss of Visitors Personal Information, unauthorized access or processing in violation of the law. W will notify the Users if it receives any requests according to articles 15-22 of GDPR. W refrains from disclosing or communicating the Visitors Personal Information to third parties, unless expressly authorized by the T&C, or by the User in writing. The User grants general authorization in order for W to entrust a Sub-Suppliers according to art. 28, paragraph 2, GDPR. If W entrust a Sub-Supplier W will appoint the Sub-Supplier with an appointment act substantially equivalent to that of this Article 6.3. Any costs of any audit or inspections carried out by the User according to art. 28 GDPR shall be borne by the User itself and nothing contained in this T&C presupposes W ’s consent to disclosure to the User, as well as User’s access to: i) internal accounting or financial data of W ; ii) W ’s trade secrets; iii) information which could compromise the security of W ’s systems or offices or entail the violation of the obligations of W as per the applicable law or of its obligations regarding confidentiality towards other third parties. The transfer of Visitors Personal Information that are considered “personal data” under the GDPR from the European Union – where W undertakes to carry out the processing – to the United States, where is located the User, is regulated under the EU Standard Contractual Clauses (Annex 1 of the T&C).
6.4 For the purpose of this T&C “Visitors Personal Information” means “personal information”, as this term is defined under CCPA, and/or “personal data”, as this term is defined under GDPR, relating to visitors of the User’s Sites, that is processed by W on behalf of User in W ’s provision of the Software under this T&C.
7. TRANSFER
The User may not transfer, in whole or in part, these T&C to third parties. W may at any time, in whole or in part, transfer these T&C to third parties.
8. TERMS AND SURVIVAL OF CLAUSES
8.1 The T&C shall be effective from the date of acceptance of the T&C by the User and shall remain in force until the first Subscription is effective.
At the end of the first Subscription, the T&C and the User’s Subscription will be tacitly extended, from time to time, and each time for a further 12 (twelve) months, unless terminated by written notice sent by one of the Party to the other by registered letter with return receipt or by registered email.
The written notice shall be sent by the User to W by registered letter with return receipt to the following address Via Oratorio 12 / A, 42015 Correggio RE or by certified e-mail to the following address webranking@pec.it.
8.2 In any case, the communications referred to by previous Article 8.1 must be received by the other Party at least 60 (sixty) days before the expiry of the Subscription.
8.3 In the event of failure or delay in communicating the termination without observing the prior notice, the User will in any case be required to pay the agreed price for the entire year of the Subscription and W will be required to provide the Software to the User.
8.4 If the amount for the Software, as accepted following the first Subscription, is not paid to W within 30 days from the renewal date, Webranking reserves the right to suspend the provision of the Software and terminate the Contract according to Art. 10 below.
8.5 The User expressly acknowledges and agrees that the duration of these T&C may not coincide with the duration of the Subscription.
8.6 The following T&C will remain valid and effective even after the conclusion of these T&C: Art. 4 (Parties’ Statements And Guarantees); Art. 5 (Liability Of The Parties – Limitation Of Liability Of W ); Art. 11 (Applicable Law and Jurisdiction); Art. 13 (General Clauses).
9. WITHDRAWAL
9.1 Webranking may withdraw from these T&C at any time, by simple written communication to the other Party upon notice of at least 30 (thirty) days. In the event of Unilateral Amendments to these T&C (as defined below in the following Article 12) the User may terminate the T&C within 30 (thirty) days after receiving notice of the Unilateral Amendment.
9.2 If Webranking withdraws from the T&C, pursuant to previous Article 9.1, W will refund a pro rata portion of the Subscription paid by the User or will reimburse the User for unused period.
10. TERMINATION
W may terminate the T&C immediately upon written notice to the User in the event that the User violates one or more of the following provisions of the T&C: Article 3.4 (Payments And Invoicing), 4.1 (User’s Duties And Guarantees), 5.3 (Liability Of The User), 7 (Transfer); provided, however, that if such breach or other breach of the T&C by the User is capable of cure, User will have thirty (30) days (or such additional cure period, if any, as W may so authorize in writing) from the date of such notice to cure such breach (during which time such User’s use of the Software may be (but is not obligated to be) suspended). In any case, W ’s right to compensation for damage remains.
11. APPLICABLE LAW AND JURISDICTION
11.1 These T&C are fully governed by Italian law.
11.2 Subject to the provisions of the relevant jurisdiction, any dispute arising between the Parties in relation to the validity, interpretation, execution and termination of these T&C and/or in any way connected to these T&C shall be the exclusive jurisdiction of the Court of Milan, with the exclusion of any other court, even shared or alternate.
12. UNILATERAL AMENDMENTS
Notwithstanding anything to the contrary in this T&C, W reserves the right to update or modify these T&C at any time in the event that such updates or modifications are necessary to adapt the Software to law or settlement regulations that have occurred, in order to implement security measures deemed necessary to optimise the provision of the Software or to improve the features of the Software (hereinafter, “Unilateral Amendments”). W will notify the User of Unilateral Amendments that have occurred via e-mail. Unilateral Amendments will be automatically valid and effective from the 30th day after the date of notification and will be deemed accepted by the User, unless the User terminates the T&C according to previous Article 9.1.
13. GENERAL CLAUSES
13.1 Any tolerance by W towards the behaviour of the User in breach of any provision of the T&C does not constitute waiver of the rights arising from the violated provision or the right to demand correct compliance of all the provisions of said T&C.
13.2 Failure to exercise or delay of a right entitled to W under the T&C does not entail waiver to the aforementioned.
13.3 The T&C contain the overall agreement reached by the Parties with respect to the object of the aforementioned and prevail over all previous communications, declarations, as well as understandings and agreements, both oral and written, reached by the Parties.
13.4 If any other term or provision of these T&C has been declared null, void or unenforceable, all other terms and conditions of these T&C will remain valid and effective. In the event of a cancellation or nullity of any term or provision as invalid, contrary to mandatory or unenforceable laws, the Parties undertake to negotiate in good faith to amend these T&C in such a way as to establish, in the best way possible, the parties’ original intent in order to fulfil the commitments thereunder.
13.5 W and the User act in full autonomy and independence. These T&C do not give rise to any collaborative relationship, agency, association, brokering or subordinated work.
13.6 Any communication from one Party to the other with respect to these T&C shall be sent either by registered mail or by e-mail (provided with the option of notification of receipt) to the following addresses:
- for W : email: info@datakojak.com; registered offices Correggio (RE), Via Oratorio 12/A – 42015 (Italy);
- for the User: to the postal address, email address reported to W upon Registration.
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STANDARD CONTRACTUAL CLAUSES (MODULE 4 – PROCESSOR TO CONTROLLER)
SECTION I
Clause 1
Purpose and scope
(a) | 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. |
(b) | The Parties: (i) 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 (ii) 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’). |
(c) | These Clauses apply with respect to the transfer of personal data as specified in Annex I.B. |
(d) | 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
(a) | 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. |
(b) | 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
(a) | Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions: (i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7; (ii) Clause 8.1 (b) and Clause 8.3(b); (iii) [Intentionally left blank]; (iv) [Intentionally left blank]; (v) Clause 13; (vi) Clause 15.1(c), (d) and (e); (vii) Clause 16(e); and (viii) Clause 18. |
(b) | Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679. |
Clause 4
Interpretation
(a) | Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation. |
(b) | These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679. |
(c) | 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
Docking clause
[Intentionally left blank]
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.
- Instructions
(a) | The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller. |
(b) | The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law. |
(c) | The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities. |
(d) | After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies. |
- Security of processing
(a) | The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during transmission, and 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 of the personal data, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. |
(b) | The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach. |
(c) | The data exporter shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. |
- Documentation and compliance
(a) | The Parties shall be able to demonstrate compliance with these Clauses. |
(b) | The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits. |
Clause 9
Use of sub-processors
[Intentionally left blank].
Clause 10
Data subject rights
The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679.
Clause 11
Redress
(a) | 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. |
Clause 12
Liability
(a) | 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. |
(b) | 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. |
(c) | 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. |
(d) | 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. |
(e) | The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability. |
Clause 13
Supervision
[Intentionally left blank].
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
[Clause omitted as it has been indicated that the EU processor will not combine the personal data received from the third country-controller with personal data collected by the processor in the EU]
Clause 15
Obligations of the data importer in case of access by public authorities
[Clause omitted as it has been indicated that the EU processor will not combine the personal data received from the third country-controller with personal data collected by the processor in the EU]
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) | The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason. |
(b) | 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). |
(c) | The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where: (i) 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; (ii) the data importer is in substantial or persistent breach of these Clauses; or (iii) 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. |
(d) | Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof. 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. |
(e) | 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
These Clauses shall be governed by the law of a country allowing for third-party beneficiary rights. The Parties agree that this shall be the law of Italy.
Clause 18
Choice of forum and jurisdiction
Any dispute arising from these Clauses shall be resolved by the courts of Italy. |
ANNEX I
- LIST OF PARTIES
Data exporter(s):
Name: Webranking S.r.l. (“W “)
Address: Correggio (RE), Via Oratorio 12/A – 42015 (Italy)
Contact person’s name, position and contact details: Matteo Puglia – Legal Counsel – matteo.puglia@webranking.it
Data protection officer (if any) name, position and contact details: Lapo Curini Galletti – DPO – dpo@webranking.it
EU representative (if any) name, position and contact details: N/A
Activities relevant to the data transferred under these Clauses: Processing of “Visitors Personal Information” relating to visitors of the User’s Sites, as these terms are defined by the T&C, that is processed by W on behalf of User during W ’s provision of the Software under the T&C.
Role (controller/processor): Processor
Data importer(s):
Name: the User (as defined under the T&C)
Address: the address communicated to W by the User
Contact person’s name, position and contact details: the Contact person communicated to W by the User
Activities relevant to the data transferred under these Clauses: Using of the Software provided by W under the T&C.
Role (controller/processor): Controller
- DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Visitors of the User’s Sites.
Categories of personal data transferred
Browsing data, data collected by tracking tools (such as Google Analytics).
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.
N/A
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Ongoing
Nature of the processing
Provision of services (Software SaaS, called Data Kojak, to the User)
Purpose(s) of the data transfer and further processing
Processing of “Visitors Personal Information” relating to visitors of the User’s Sites, in order to provide the Software to the User.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Any information, personal or otherwise, collected by the Software used on the User’s Sites will be kept by W for a maximum period of 3 (three) months, after which – unless otherwise agreed in writing with the User – will be deleted by W and no longer available within the Software
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
N/A