Data Processing Addendum

This Data Processing Addendum ("DPA") is incorporated into, and is subject to the terms and conditions of, the Agreement between FunnelGuard Inc. and the customer entity that is a party to the Agreement ("Customer" or "you").

All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. For the avoidance of doubt, all references to the "Agreement" shall include this DPA as defined herein.

"Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.

"Agreement" means FunnelGuard Inc.’s Standard Terms of Use, or other written or electronic agreement, which govern the provision of the Service to Customer, as such terms or agreement may be updated from time to time.

"Control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term "Controlled" shall be construed accordingly.

"Customer" means any person or entity that is registered with us to use the Service.

"Data Protection Laws" means all data protection laws and regulations applicable to a party's processing of Customer Data under the Agreement, including, where applicable, EU Data Protection Law, California Consumer Privacy Act (“CCPA”); the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); and the Brazilian General Data Protection Law ("LGPD"), Federal Law no. 13,709/2018.Non-EU Data Protection Laws.

"EU Data Protection Law" means all data protection laws and regulations applicable to Europe, including (i) Regulation 2016/679 of the European Parliament and of the Council 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) ("GDPR"); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) applicable national implementations of (i) and (ii); and (iii) in respect of the United Kingdom ("UK") any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the UK leaving the European Union).

"Europe" means, for the purposes of this DPA, the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.

"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of or access to, Customer Data on systems managed or otherwise controlled by FunnelGuard Inc..

"Sensitive Data" means (a) social security number, passport number, driver's license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords; or (f) other information that falls within the definition of "special categories of data" under applicable Data Protection Laws.

"Service Data" means any data relating to the Customer’s use, support and/or operation of the Service, including information relating to volumes, activity logs, frequencies, bounce rates or other information regarding emails and other communications Customer generates and sends using the Service.

"Sub-processor" means any processor engaged by FunnelGuard Inc. or its Affiliates to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or this DPA. Sub-processors may include third parties or Affiliates of FunnelGuard Inc. but shall exclude FunnelGuard Inc. employees or consultants.

The terms "personal data", "controller", "data subject", "processor" and "processing" shall have the meaning given to them under Data Protection Laws or if not defined thereunder, the GDPR, and "process", "processes" and "processed" shall be interpreted accordingly.

If EU Data Protection Law or the LGPD applies to either party's processing of Customer Data, the parties acknowledge and agree that with regard to the processing of Customer Data, Customer is the controller and FunnelGuard Inc. is a processor acting on behalf of Customer, as further described in Annex A (Details of Data Processing) of this DPA.

FunnelGuard Inc. shall process Customer Data only in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing ("Permitted Purposes"). The parties agree that the Agreement sets out Customer’s complete and final instructions to FunnelGuard Inc. in relation to the processing of Customer Data, and processing outside the scope of these instructions (if any) shall require prior written agreement between the parties.

Customer represents and warrants that (i) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Customer Data and any processing instructions it issues to FunnelGuard Inc.; and (ii) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for FunnelGuard Inc. to process Customer Data for the purposes described in the Agreement. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data. Without prejudice to the generality of the foregoing, Customer agrees that it shall be responsible for complying with all laws (including Data Protection Laws) applicable to the Services provided.

Customer will ensure that FunnelGuard Inc.'s processing of the Customer Data in accordance with Customer’s instructions will not cause FunnelGuard Inc. to violate any applicable law, regulation, or rule, including, without limitation, Data Protection Laws. FunnelGuard Inc. shall promptly notify Customer in writing, unless prohibited from doing so under EU Data Protection Laws, if it becomes aware or believes that any data processing instruction from Customer violates the GDPR or any UK implementation of the GDPR.

Customer agrees that FunnelGuard Inc. may engage Sub-processors to process Customer Data on Customer's behalf. The Sub-processors currently engaged by FunnelGuard Inc. and authorized by Customer are available upon request.

FunnelGuard Inc. shall: (i) enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Customer Data as those in this DPA, to the extent applicable to the nature of the service provided by such Sub-processor; and (ii) remain responsible for such Sub-processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-processor that cause FunnelGuard Inc. to breach any of its obligations under this DPA.

FunnelGuard Inc. shall implement and maintain appropriate technical and organizational security measures that are designed to protect Customer Data from Security Incidents and designed to preserve the security and confidentiality of Customer Data in accordance with FunnelGuard Inc.'s security standards described in Annex B ("Security Measures").

FunnelGuard Inc. shall ensure that any person who is authorized by FunnelGuard Inc. to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

Customer is responsible for reviewing the information made available by FunnelGuard Inc. relating to data security and making an independent determination as to whether the Service meets Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that FunnelGuard Inc. may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Service provided to Customer.

Upon becoming aware of a Security Incident, FunnelGuard Inc. shall: (i) notify Customer without undue delay, and where feasible, in any event no later than 48 hours from becoming aware of the Security Incident; (ii) provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer; and (iii) promptly take reasonable steps to contain and investigate any Security Incident. FunnelGuard Inc.'s notification of or response to a Security Incident under this Section shall not be construed as an acknowledgment by FunnelGuard Inc. of any fault or liability with respect to the Security Incident.

Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Service, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Service, and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Service.

Customer acknowledges that FunnelGuard Inc. may transfer and process Customer Data to and in United States and anywhere else in the world where FunnelGuard Inc., its Affiliates or its Sub-processors maintain data processing operations. FunnelGuard Inc. shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws.

Upon termination or expiration of the Agreement, FunnelGuard Inc. shall (at Customer's election) delete or return to Customer all Customer Data (including copies) in its possession or control, except that this requirement shall not apply to the extent FunnelGuard Inc. is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data FunnelGuard Inc. shall securely isolate, protect from any further processing and eventually delete in accordance with FunnelGuard Inc.'s deletion policies, except to the extent required by applicable law.

As part of the Service, FunnelGuard Inc. provides Customer with a number of self-service features, that Customer may use to retrieve, correct, delete or restrict the use of Customer Data, which Customer may use to assist it in connection with its obligations under the Data Protection Laws with respect to responding to requests from data subjects via Customer's account at no additional cost. In addition, FunnelGuard Inc. shall, taking into account the nature of the processing, provide reasonable additional assistance to Customer to the extent possible to enable Customer to comply with its data protection obligations with respect to data subject rights under Data Protection Laws. In the event that any such request is made to FunnelGuard Inc. directly, FunnelGuard Inc. shall not respond to such communication directly except as appropriate (for example, to direct the data subject to contact Customer) or legally required, without Customer's prior authorization. If FunnelGuard Inc. is required to respond to such a request, FunnelGuard Inc. shall promptly notify Customer and provide Customer with a copy of the request unless FunnelGuard Inc. is legally prohibited from doing so. For the avoidance of doubt, nothing in the Agreement (including this DPA) shall restrict or prevent FunnelGuard Inc. from responding to any data subject or data protection authority requests in relation to personal data for which FunnelGuard Inc. is a controller.

If a law enforcement agency sends FunnelGuard Inc. a demand for Customer Data (for example, through a subpoena or court order), FunnelGuard Inc. shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, FunnelGuard Inc. may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then FunnelGuard Inc. shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy, unless FunnelGuard Inc. is legally prohibited from doing so.

To the extent required under applicable Data Protection Laws, FunnelGuard Inc. shall (taking into account the nature of the processing and the information available to FunnelGuard Inc.) provide all reasonably requested information regarding the Service to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws. FunnelGuard Inc. shall comply with the foregoing by: (i) providing the information contained in the Agreement, including this DPA; and (ii) if the foregoing sub-sections (i) and (ii) are insufficient for Customer to comply with such obligations, upon request, providing additional reasonable assistance (at Customer's expense).

Each party’s and all of its Affiliates’ liability taken together in the aggregate arising out of or related to this DPA shall be subject to the exclusions and limitations of liability set forth in the Agreement.

Any claims made against FunnelGuard Inc. or its Affiliates under or in connection with this DPA shall be brought solely by the Customer entity that is a party to the Agreement.

In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.

This DPA shall remain in effect for as long as FunnelGuard Inc. carries out Customer Data processing operations on behalf of Customer or until termination of the Agreement.

The parties agree that this DPA shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service.

In the event of any conflict or inconsistency between this DPA and the FunnelGuard Inc. Standard Terms of Use, the provisions of the following documents (in order of precedence) shall prevail: (i) this DPA; and then (ii) the FunnelGuard Inc. Standard Terms of Use.

Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.

Notwithstanding anything to the contrary in the Agreement (including this DPA), FunnelGuard Inc. shall have a right to collect, use and disclose Service Data for its legitimate business purposes, such as: (i) for accounting, tax, billing, audit, and compliance purposes; (ii) to provide, develop, optimize and maintain the Service; (iii) to investigate fraud, spam, wrongful or unlawful use of the Service; and/or (iv) as required by applicable law.

To the extent any such Service Data is considered personal data under Data Protection Laws, FunnelGuard Inc. shall be responsible for and shall process such data in accordance with the FunnelGuard Inc. Privacy Policy and Data Protection Laws. For the avoidance of doubt, this DPA shall not apply to Service Data.

No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

(a) Subject matter: The subject matter of the data processing under this DPA is the Customer Data.

(b) Duration of processing: FunnelGuard Inc. will process Customer Data as outlined in this policy (Return or Deletion of Data) of this DPA.

(c) Purpose of processing: FunnelGuard Inc. shall only process Customer Data for the Permitted Purposes, which shall include: (i) processing as necessary to provide the Service in accordance with the Agreement; (ii) processing initiated by Customer in its use of the Service; and (iii) processing to comply with any other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement.

(d) Nature of the processing: FunnelGuard Inc. visualizes, documents, and monitors live funnels. Clients get actionable insights and warnings in real-time so they never miss your target again.

(e) Categories of data subjects: (i) Merchants; and (ii) Data Subjects, each as defined in the FunnelGuard Inc. Privacy Policy.

(f) Types of Customer Data: Customer may upload, submit or otherwise provide certain personal data to the Service, the extent of which is typically determined and controlled by Customer in its sole discretion, and may include the following types of personal data:

● Merchants: Identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility);

● Data Subjects: Identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address); personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information).

(g) Sensitive Data: FunnelGuard Inc. does not want to, nor does it intentionally, collect or process any Sensitive Data in connection with the provision of the Service.

(h) Processing Operations: Customer Data will be processed in accordance with the Agreement (including this DPA) and may be subject to the following processing activities:

● Storage and other processing necessary to provide, maintain and improve the Service provided to Customer pursuant to the Agreement; and/or

● Disclosures in accordance with the Agreement and/or as compelled by applicable law.

The Security Measures applicable to the Service are described

Effective October 28th 2020

Last Updated: 15 December 2022