Data Processing Agreement
Verb Technology Company, Inc. • Updated 2021-02-01
Data Processing Terms
This Data Processing Agreement (this “Agreement” or these “Terms”) is made and entered into by and between you (Customer) and Verb Technology Company, Inc., a Nevada corporation, whose principal place of business is at 2210 Newport Blvd, Unit 200, Newport Beach, CA 92662, United States (VERB). This Agreement supplements any Subscription Agreement (the “Master Agreement“) between Customer and VERB. The term “Agreement” when used herein refers to this Agreement. The provision of Services may require VERB to process Personal Data on behalf of the Customer.
This Agreement sets out the additional terms, requirements and conditions on which VERB will process Personal Data provided by Customer. For the processing of Personal Data relating to Data Subjects based within the European Union, this Agreement contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) for contracts between controllers and processors.
1. Definitions and interpretation
- The following definitions and rules of interpretation apply to these Terms.
Business Day: any weekday except those days on which VERB is closed for the observance of a holiday, between the hours of 8 am and 5 pm Mountain Time. The term Business Hour shall be construed accordingly.
Business Purposes: personal data shall be processed to provide the customer with a sales automation system and mobile customer relationship manager to easily share content to help convert contacts to customers or join the sender as a business builder. It includes a contact management system, content management system, global and contact analytics, real-time tracking, real-time notifications, summary feed, and social share functionality. The services are further described in the Master Agreement or any other purpose specifically identified in ANNEX A.
Data Protection Legislation: all applicable privacy and data protection laws including, but not limited to, the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation, relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC).
Data Subject: an individual who is the subject of Personal Data.
Effective Date: means the effective date of these Terms, being the date on which Customer accepted, or the parties otherwise agreed to, these Terms, whichever is the later.
Personal Data: means any information relating to an identified or identifiable natural person that is processed by VERB as a result of, or in connection with, the provision of services for the Business Purposes; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
Processing, processes, and process: either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes, or process. It includes any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Personal Data to third parties.
Services: the provision of software as a service by VERB to enable the Customer to send marketing information to contacts and provide data analytics on the related communication under these Terms.
Standard Contractual Clauses: the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU.
If there is a Master Agreement between VERB and Customer, this Agreement is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Capitalized terms that are used but not defined in this Agreement shall have the meanings given such terms in such Master Agreement.
The Annexes form part of these Terms and will have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the Annexes.
A reference to writing or written includes email.
In the case of conflict or ambiguity between:
- any provision contained in the body of this Agreement and any provision contained in the Annexes, the provision in the body of this Agreement will prevail;
- any of the provisions of this Agreement and the provisions of any Master Agreement, the provisions of this Agreement will prevail; and
- any of the provisions of this Agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
2. Personal Data types and processing purposes
- The Customer and VERB acknowledge that for the purpose of the Data Protection Legislation, the Customer is the controller and VERB is the processor.
The Customer retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to VERB.
ANNEX A describes the subject matter, duration, nature and purpose of processing and the Personal Data categories, and Data Subject types in respect to which VERB may process to fulfil the Business Purposes.
3. Customer obligations
- The Customer shall retain control of its Personal Data and remains responsible for its compliance obligations under the applicable Data Protection legislation, including providing any required notices and for having a lawful basis for the processing of the Personal Data. This responsibility shall include obtaining any required consents from data subjects. For the avoidance of doubt, the Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Legislation. The Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquires Personal Data.
4. Provider’s obligations
- VERB will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes or in accordance with the Customer’s written instructions. VERB will not process the Personal Data for any other purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. VERB must promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Data Protection Legislation.
VERB must promptly comply with any Customer request or instruction requiring VERB to amend, transfer, delete, or otherwise process the Personal Data, or to stop, mitigate, or remedy any unauthorized processing.
VERB will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Customer or these Terms specifically authorizes the disclosure or as required by law. If a law, court, regulator, or supervisory authority requires VERB to process or disclose Personal Data, VERB will first inform the Customer of the legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
VERB will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Data Protection Legislation, taking into account the nature of VERB’S processing and the information available to VERB, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation. To the extent legally permitted, Customer shall be responsible for any costs arising from Sound Concept’s provision of the assistance under this paragraph.
5. Provider’s employees
- VERB will ensure that all of its employees:
- are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect to the Personal Data;
- have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
- are aware both of VERB’S duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
- VERB will at all times implement appropriate technical and organizational measures against unauthorized or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display, or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure, or damage of Personal Data.
VERB will implement and maintain such measures to ensure a level of security appropriate to the risk involved, including, as VERB deems appropriate:
- the pseudonymisation and encryption of personal data;
- the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services;
- the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
- a process for regularly testing, assessing, and evaluating the effectiveness of security measures.
7. Personal Data Breach
- VERB will promptly and without undue delay notify the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
VERB will as soon as reasonably practicable and without undue delay notify the Customer if it becomes aware of:
- any accidental, unauthorized or unlawful processing of the Personal Data; or
- any Personal Data Breach.
If VERB becomes aware of the matters described in clauses 7.2(a) and/or 7.2(b), it shall, without undue delay, provide the Customer with the following information:
- description of the nature of those matters, including the categories and approximate number of both Data Subjects and Personal Data records concerned;
- the likely consequences; and
- description of the measures taken, or proposed to be taken to address the matters set out in clauses 7.2(a) and/or 7.2(b), including measures to mitigate its possible adverse effects.
Immediately following any unauthorized or unlawful Personal Data processing or Personal Data Breach, the parties will coordinate with each other to investigate the matter. VERB will reasonably cooperate with the Customer in the Customer’s handling of the matter, including:
- assisting with any investigation;
- providing the Customer with physical access to any facilities and operations affected to the extent doing so does not impair VERB’S ability to maintain the privacy and security of data of other customers;
- facilitating interviews with VERB’S employees, former employees, and others involved in the matter;
- making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and
- taking reasonable and prompt steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach or unlawful Personal Data processing.
- VERB will not inform any third party of any Personal Data Breach without first obtaining the Customer’s prior written consent, except when required to do so by law.
VERB agrees that the Customer has the sole right to determine:
- whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
- whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
- VERB will cover all reasonable expenses associated with the performance of its (but not the Customer’s) obligations under clauses 7.2 and 7.4, unless the matter arose from the Customer’s specific instructions, negligence, willful default or breach of these Terms, in which case the Customer will cover such expenses (including those of VERB) up to the amount of 12 months licensing fees.
Subject to the provisions of clause 17, below, VERB will also reimburse the Customer for actual reasonable expenses up to the amount of 12 months of licensing fees that the Customer incurs when responding to a Personal Data Breach to the extent that VERB caused the Personal Data Breach. This reimbursement will include the costs of notices sent under clauses 7.4 and 7.6 as well as any remedy offered to affected Data Subjects, as set out in clause 7.6.
8. Cross-border transfers of Personal Data
- VERB (or any subcontractor) will not transfer or otherwise process Personal Data outside the European Economic Area (EEA), except as set forth in clause 8.2, below.
VERB may only process, or permit the processing, of Personal Data outside the EEA under the following conditions:
- VERB is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. VERB must identify in ANNEX A or in writing to the Customer, the territory that is subject to such an adequacy finding; or
- VERB participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that VERB (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the General Data Protection Regulation ((EU) 2016/679). VERB will identify in ANNEX A, or in writing to the Customer, the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and VERB will immediately inform the Customer of any change to that status; or
- the transfer otherwise complies with the Data Protection Legislation for the reasons set out in ANNEX A.
If any Personal Data transfer between the Customer and VERB requires execution of Standard Contractual Clauses to comply with the Data Protection Legislation, the parties will complete all relevant details in, and execute Standard Contractual Clauses and take all other actions required to legitimize the transfer.
- VERB may only authorize a third party (subcontractor) to process the Personal Data if:
- the Customer is provided with an opportunity to object to the appointment of each subcontractor within five Business Days after VERB supplies the Customer with full details regarding such subcontractor;
- VERB enters into a written contract with the subcontractor that contains terms substantially the same as those set out in these Terms, in particular, in relation to requiring appropriate technical and organizational data security measures, and, upon the Customer’s written request, provides the Customer with copies of such contracts; and
- VERB remains responsible for its subcontractors’ performance under this Agreement;
Those subcontractors approved as of the Effective Date are as set out in ANNEX A.
If the subcontractor fails to fulfill its obligations under such written agreement and subject to clause 17, VERB remains fully liable to the Customer for the subcontractor’s performance of its contractual obligations.
Customer agrees that any request to audit VERB’S subcontractors may be satisfied by presenting up-to-date audit reports, other reports, certifications, attestations, or extracts confirming the subcontractor’s or subcontractors’ compliance from independent persons or entities. Customer hereby designates any such independent persons or entities as its sole auditor or auditors for purposes of Article 28 of the GDPR.
10. Complaints, data subject requests and third party rights
- VERB will, at no additional cost, undertake such measures as may be appropriate and promptly provide such information to the Customer as the Customer may reasonably required to enable the Customer to comply with:
- the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase Personal Data, object to the processing and automated processing of Personal Data, and restrict the processing of Personal Data; and information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation.
- VERB will notify the Customer immediately if it receives any complaint, notice, or communication that relates directly or indirectly to the processing of the Customer’s Personal Data or to either VERB or Customer’s compliance with the Data Protection Legislation.
VERB must notify the Customer within five Business Days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.
VERB will give the Customer its full cooperation and assistance in responding to any complaint, notice, communication, or Data Subject request.
VERB must not disclose the Personal Data to any Data Subject or to a third party unless the disclosure is either at the Customer’s request or instruction, permitted by this Agreement, or is otherwise required by law.
11. Term and termination
- These Terms will take effect on the Effective Date and, notwithstanding expiration of the Term or termination of this Agreement, will remain in effect as long as VERB holds any of Customer’s Personal Data.
This Agreement will remain in full force and effect from the Effective Date so long as:
- the Master Agreement, if any, remains in effect, or
- VERB retains any Personal Data related to Customer’s Business Purposes in its possession or control (Term).
- Any provision of these Terms that expressly or by implication should come into or continue in force on or after termination of any Master Agreement to protect Personal Data will remain in full force and effect after such termination.
If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its obligations under Master Agreement or from fulfilling the Business Purposes, the parties will suspend the processing of Personal Data until that processing can be brought into compliance with the new requirements. If either party is unable to bring the Personal Data processing into compliance with the Data Protection Legislation within thirty days thereafter, the other party may terminate any Master Agreement on written notice to the other.
12. Data return and destruction
- At the Customer’s request, VERB will give the Customer a copy of or access to all or part of the Customer’s Personal Data in its possession or control in the format and on the media reasonably selected by the Customer.
On termination or expiration of any Master Agreement or, if directed in writing by the Customer for any reason, VERB will securely delete or destroy, return, and not retain, any Personal Data related to these Terms in its possession or control, except for one copy that it may retain and use for up to twelve months for audit purposes only or any other lawful reason.
If any law, regulation, or government or regulatory body requires VERB to retain any documents or materials that VERB would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement. The notification shall give details of the documents or materials that VERB must retain, the legal basis for retention, and establish a specific timeline for destruction once the retention requirement ends.
If Customer requests, VERB will verify in writing that it has destroyed the Personal Data within five Business Days after it completes the destruction.
- VERB will keep detailed, accurate, and up-to-date records regarding any processing of Personal Data it carries out for the Customer. This shall include maintaining a list of approved subcontractors, the processing purposes, categories of processing, any transfers of Personal Data to a third country and related safeguards, and a general description of the technical and organizational security measures referred to in clause 6.1 (Records).
VERB will ensure that its Records are sufficient to enable the Customer to verify VERB’S compliance with its obligations under these Terms and VERB will provide the Customer with a copy of the Records upon request.
- On at least 30 days’ notice, VERB will allow Customer (or Customer’s selected auditor) to audit its compliance with this Agreement and provide Customer all reasonably necessary assistance to conduct such audit to the extent that such audit and assistance does not compromise the security or privacy of other customers’ information. VERB may charge a fee to cover expenses it incurs to cooperate with the audit.
The notice requirements in clause 14.1 will not apply if the Customer reasonably believes that a Personal Data Breach occurred or is occurring, or VERB is in breach of any of its obligations under these Terms or any Data Protection Legislation.
If a Personal Data Breach occurs or is occurring, or VERB becomes aware of a breach of any of its obligations under these Terms or any Data Protection Legislation, VERB will:
- promptly and within two Business Days of the triggering event, conduct its own audit to determine the cause;
- produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;
- provide the Customer with a copy of the written audit report; and
- where reasonably possible, remedy any deficiencies identified by the audit within five Business Days.
- VERB warrants and represents that, considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage;
- the nature of the Personal Data protected; and
- comply with all applicable Data Protection Legislation and its information and security policies, including the security measures required in clause 6.1.
- The Customer warrants and represents that VERB’s expected use of the Personal Data for the Business Purposes will comply with the Data Protection Legislation. In particular, Customer warrants and represents that it will have a lawful basis for processing all Personal Data that is consistent with the Data Privacy Legislation.
- Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under these Terms.
The Customer acknowledges that VERB is reliant on the Customer for direction as to the extent to which VERB is entitled to use and process the Personal Data. Consequently, the Customer agrees to indemnify and hold VERB harmless from any losses, including legal fees and expenses, or arising from any claim brought by a Data Subject for any action or omission by VERB resulting from the Customer’s instructions.
- VERB’s liability under or in connection with these Terms, and including under any Standard Contractual Clauses entered into in connection with these Terms or the Master Agreement, is subject to the limitations on liability contained in any Master Agreement between VERB and the Customer.
- Any notice or other communication given by the Customer to VERB in connection with these Terms must be in writing and delivered to:
Privacy Officer, Verb Technology Company, Inc., 2210 Newport Blvd, Unit 200, Newport Beach, CA 92663.
No communication sent via electronic mail shall be considered a valid or effective notice under this Agreement unless a written copy of such communication is delivered as set forth in this Clause.
Clause 18.1 shall not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
19. Third Party Rights
- No third parties are intended beneficiaries of this Agreement. Accordingly, no third parties have standing to enforce the terms of this Agreement or seek any remedy for breach of this Agreement.
20. Governing Law
- If there is a Master Agreement between Verb Technology Company, Inc. and Customer, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims) shall be governed as set forth in the Master Agreement. Otherwise, this Agreement will be governed by the laws of the State of Nevada. Any formal legal action regarding or in any way relating to the subject matter of this Agreement may be brought only in a state or federal court within the State of Nevada. Customer and VERB hereby consent to the personal jurisdiction of any such court.
21. Personal Data Processing Purposes and Details
- Subject matter of processing: VERB’S provision of the Services and related technical support to the Customer
Duration of Processing: VERB will process data for the Term plus the period from expiration of such Term until deletion of all Personal Data by VERB in accordance with these Terms and the Master Agreement.
Nature and Purpose of Processing: VERB will process Customer Personal Data submitted, stored, sent or received by the Customer via the Services for the purposes of providing the Services and related technical support to the Customer in accordance with these Terms.
Personal Data Categories: Personal Data submitted, stored, sent or received by the Customer in connection with the Services, which may include the following categories of data: names, addresses, telephone numbers, email addresses, opt-in designation, lead capture results, area of focus preference, hot/cold designation, notes, tags/folder designation, user share actions to contacts, contact actions with platform and interest level rating
Data Subject Types: Customer’s clients, contacts and prospective clients.
VERB’S legal basis for processing Personal Data outside the EEA in order to comply with cross-border transfer restrictions:Located in a country with a current determination of adequacy: United States of America.Standard Contractual Clauses between Customer as “data exporter” and Provider as “data importer”.EU-US Privacy Shield Certified.
22. Approved Subcontractors:
- Amazon Web Services (https://aws.amazon.com/) – Hosting Services
- Oracle Bronto (https://bronto.com) – Email Newsletter
- Freshworks, Inc. (https://freshdesk.com) – Customer Helpdesk
- JIRA, Atlassian Software (https://www.atlassian.com/software/jira) – Customer Helpdesk
- Sendgrid (https://sendgrid.com) -SMTP Email Provider
- Ziplingo (http://ziplingo.com) – SMS Gateway Provider
- LightSpeed VT (http://lightspeedvt.com) – Learning Management System
- Achieve Today (https://iachievetoday.com) – Learning Management System
- First Data (http://firstdata.com) – Payment Processor
- Authorize.net (http://authorize.net) – Payment Gateway
- Stripe (http://stripe.com) – Payment Processor and Gateway
- World Pay (https://worldpay.com) – Payment Processor
23. Security measures
- The technical and organizational security measures that VERB shall implement shall include commercially reasonable measures to:
- ensure that physical access to data storage hardware containing Personal Data is limited to authorized personnel;
- implement system access controls to limit access to Personal Data to authorized personnel and users;
- implement an effective system of periodic backup that includes Personal Data;
- ensure that, to the extent systems containing Personal Data are remotely managed, such management occurs over an encrypted communication channel;
- implement an appropriate authentication scheme, which may include passwords, biometrics, and other authentication factors that are commercially reasonable to ensure the effectiveness of system access controls; and
- implement appropriate safeguards against malware.