Data Processing Addendum (DPA)
This Data Processing Addendum (“DPA”) is incorporated by reference into Rivo’s Terms of Service available at https://www.rivo.io/legal/terms or other agreement governing the use of Rivo’s services (“Agreement”) entered by and between you, the Customer (as defined in the Agreement) (collectively, “you”, “your”, “Customer”), and Rivo Commerce, Inc.. or an Affiliate (“Rivo”, “us”, “we”, “our”) to reflect the parties’ agreement with regard to the Processing of Personal Data by Rivo solely on behalf of the Customer, as applicable under Data Protection Laws. Both parties shall be referred to as the “Parties” and each, a “Party”.
Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement.
By using the Services, Customer accepts this DPA, and you represent and warrant that you have full authority to bind the Customer to this DPA. If you cannot, or do not agree to, comply with and be bound by this DPA, or do not have authority to bind the Customer or any other entity, please do not provide Personal Data to us.
Definitions
(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
(b) “CCPA/CPRA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq, and its implementing regulations, as may be amended from time to time, including the California Privacy Rights Act.
1. The terms, “Controller”, “Data Subject“, “Member State“, “Processor“, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR. The terms “Business”, “Business Purpose”, “Consumer” and “Service Provider” shall have the same meaning as in the CCPA/CPRA.
(d) For the purpose of clarity, within this DPA “Controller” shall also mean “Business”, and “Processor” shall also mean “Service Provider”, to the extent that the CCPA/CRPA applies. In the same manner, Processor’s Sub-processor shall also refer to the concept of Service Provider.
(e) “Data Protection Laws” means all applicable and binding privacy and data protection laws and regulations, including such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Canada, and the United States of America, as applicable to the Processing of Personal Data under the Agreement including (without limitation) the GDPR, the UK GDPR, the FADP, the CCPA/CPRA, the Virginia Consumer Data Privacy Act, and the Colorado Privacy Act, as known or reasonably expected by Rivo to be applicable to the Processing of Personal Data hereunder and in effect at the time of Processor’s performance hereunder.
(f) “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
(g) “GDPR” means the 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, and repealing Directive 95/46/EC (General Data Protection Regulation).
(h) “Personal Data” or “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable natural person or Consumer, to the extent such information is processed by Rivo solely on behalf of Customer, under this DPA and the Agreement between Customer and Rivo.
(i) “Security Measures” means the security measures applicable to the Services licensed by Customer, as updated from time to time, and as set forth herein.
(j) “Sensitive Data” means Personal Data that is protected under a special legislation and requires unique treatment, such as “special categories of data”, “sensitive data” or other materially similar terms under applicable Data Protection Laws.
(k) “Standard Contractual Clauses” shall mean (i) the standard contractual clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 (“EU SCCs”); or (ii) where the UK GDPR applies, the International Data transfer Addendum to the EU SCCs issued by the Information Commissioner’s Office in the UK, as applicable.
(l) “Sub-processor” means any third party that Processes Personal Data under the instruction or supervision of Rivo, and is set forth in greater detail herein in Schedule D.
(m) “UK GDPR” means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).
2. Processing of Personal Data.
2.1 Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data performed solely on behalf of Customer, (i) Customer is the Controller of Personal Data, (ii) Rivo is the Processor of such Personal Data, (iii) for the purposes of the CCPA/CPRA (and to the extent applicable), Customer is the “Business” and Rivo is the “Service Provider” (as such terms are defined in the CCPA/CPRA), with respect to Processing of Personal Data described in this Section 2.1. The terms “Controller” and “Processor” below hereby signify Customer and Rivo, respectively.
2.2 Customer Processing of Personal Data. Customer, in its use of the Service, and Customer’s instructions to the Processor, shall comply with Data Protection Laws. Customer shall establish and have any and all required legal bases in order to collect, Process and transfer to Processor the Personal Data, and to authorize the Processing by Processor, and for Processor’s Processing activities on Customer’s behalf, including the pursuit of ‘business purposes’ as defined under the CCPA/CPRA.
2.3 Processor’s Processing of Personal Data. When Processing on Customer’s behalf under the Agreement, Processor shall Process Personal Data for the following purposes: (i) Processing in accordance with the Agreement and this DPA; (ii) Processing for Customer as part of its provision of the Services; (iii) Processing to comply with Customer’s reasonable and documented instructions, where such instructions are consistent with the terms of the Agreement, regarding the manner in which the Processing shall be performed; (iv) Processing as required under the laws applicable to Processor, and/or as required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, provided that Processor shall inform Customer of the legal requirement before Processing, unless such law or order prohibit such information on important grounds of public interest.
Processor shall inform Customer without undue delay if, in Processor’s opinion, an instruction for the Processing of Personal Data given by Customer infringes applicable Data Protection Laws. To the extent that Processor cannot comply with an instruction from Customer, Processor (i) shall inform Customer, providing relevant details of the issue, (ii) Processor may, without liability to Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing such data) and/or suspend Customer’s access to the Services, and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, Customer may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Customer shall pay to Processor all the amounts owed to Processor or due before the date of termination. Customer will have no further claims against Processor (including, without limitation, requesting refunds for Service) pursuant to the termination of the Agreement and the DPA as described in this paragraph.
2.4 Details of the Processing. The subject-matter of Processing of Personal Data by Processor is the performance of the Service pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule A (Details of Processing) to this DPA.
2.5 Sensitive Data. The Parties agree that the Services are not intended for the processing of Sensitive Data, and that if Customer wishes to use the Services to process Sensitive Data, it must first obtain the Processor’s explicit prior written consent and enter into any additional agreements as required by Rivo.
2.6 CCPA/CPRA Standard of Care; No Sale of Personal Information. Processor acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that Processor provides to Customer under the Agreement. Processor shall not have, derive, or exercise any rights or benefits regarding Personal Information Processed on Customer’s behalf, nor shall it combine the Personal Information Processed on Customer’s behalf with any information it processes on behalf of any other parties, by way of logical separation, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA. Processor certifies that it understands the rules, requirements and definitions of the CCPA/CPRA and agrees to refrain from selling and/or sharing (as such term is defined in the CCPA/CPRA) any Personal Information Processed hereunder without Customer’s prior written consent or instruction, nor taking any action that would cause any transfer of Personal Information to or from Processor under the Agreement or this DPA to qualify as “selling” or “sharing” such Personal Information under the CCPA/CPRA.
3. Technical and Organizational Measures
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk to the rights and freedoms of natural persons, Processor will implement technical and organizational measures to ensure a level of security appropriate to that risk. In assessing the appropriate level of security, Processor shall, in particular, take into account the risks that are presented by the Processing, in particular from unauthorized or unlawful Processing, accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed. Processor shall provide reasonable assistance to Customer in ensuring Customer meets its own compliance obligations with respect to these same security measures.
Customer acknowledges and agrees that Rivo is currently in the process of obtaining its SOC 2 Type II with certification targeted for no later than the end of Quarter Three - 2025. Rivo has committed to comply with the SOC2 Type II certification to ensure an appropriate level of security of the Personal Data.
4. Data Incident Management; Notification
Processor maintains security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data Processed by Processor on behalf of the Customer (a “Data Incident”). Processor shall make reasonable efforts to identify and take those steps as Processor deems necessary and reasonable in order to remediate and/or mitigate the cause of such Data Incident to the extent the remediation and/or mitigation is within Processor’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or anyone who uses the Services on Customer’s behalf. Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Data Incident which directly or indirectly identifies Processor (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without Customer’s prior written approval, unless, and solely to the extent that, Customer is compelled to do so pursuant to applicable Data Protection Laws. In the latter case, unless prohibited by such laws, Customer shall provide Processor with reasonable prior written notice to provide Processor with the opportunity to object to such disclosure and in any case, Customer will limit the disclosure to the minimum scope required.
5. Sub-processors
5.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) Processor may each engage third-party Sub-processors in connection with the provision of the Service.
5.2 List of Current Sub-processors and Notification of New Sub-processors. Processor makes available to Customer the current list of Sub-Processors used by Processor to process Personal Data on Schedule D. Such Sub-processor list includes the identities of those Sub-processors and the entity’s country (“Sub-Processor List”). The Sub-Processor List as of the date of first use of the Service by Customer is hereby deemed authorized upon first use of the Services.
5.3 Processor’s webpage accessible via https://www.rivo.io/legal/subprocessors offers a mechanism to subscribe to notifications of new Sub-processors used to Process Personal Data, to which Customer may subscribe, and when Customer subscribes, Processor shall provide notification of any new Sub-processor(s) before authorizing such new Sub-processor(s) to Process Personal Data in connection with the provision of the Services. For clarity, in the event that Customer does not subscribe to the foregoing, Customer waives any rights to object to any new Sub-processor.
5.4 Objection to New Sub-processors. Customer may reasonably object to Processor’s use of a new Sub-processor, for reasons relating to the protection of Personal Data intended to be Processed by such Sub-processor, by notifying Processor promptly in writing within seven (7) days after receipt of a Processor notification in accordance with the mechanism set out in Section 6.3. Such written objection shall include the reasons for objecting to Processor’s use of such new Sub-processor. Failure to object to such new Sub-processor in writing within seven (7) days following Processor’s notice shall be deemed as acceptance of the new Sub-Processor. In the event Customer reasonably objects to a new Sub-processor, as permitted in the preceding sentences, Processor will use reasonable efforts to make available to Customer a change in the Service or recommend a commercially reasonable change to Customer’s configuration or use of the Service to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Processor is unable to make available such change within thirty (30) days, Customer may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Service which cannot be provided by Processor without the use of the objected-to new Sub-processor, by providing written notice to Processor. All amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Processor. Until a decision is made regarding the new Sub-processor, Processor may temporarily suspend the Processing of the affected Personal Data and/or suspend access to the Services. Customer will have no further claims against Processor due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.
5.5 Agreements with Sub-processors. Processor has entered into a written agreement with each Sub-processor containing appropriate safeguards to the protection of Personal Data. Where Processor engages a Sub-processor for carrying out specific Processing activities on behalf of the Customer, the same or materially similar data protection obligations as set out in this DPA shall be imposed on such new Sub-processor by way of a contract, in particular obligations to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the applicable Data Protection Law. Where a Sub-processor fails to fulfil its data protection obligations concerning its processing of Personal Data, Processor shall remain responsible for the performance of the Sub-processor’s obligations.
6. Data Subject Rights
The rights of data subjects shall be asserted against Controller. Processor will, to the extent legally permitted, provide reasonable assistance to Customer to respond to requests from Data Subjects to exercise their rights under Applicable Data Protection Law (e.g., rights to access or delete Personal Information) in a manner that is consistent with the nature and functionality of the Services. In the event that Rivo receives any such request, it shall notify the Customer and Customer is responsible for handling such requests by a Data Subject in accordance with Applicable Data Protection Law.
7. Controller’s Supervision Rights Under GDPR, UK GDPR
7.1 As applicable, Controller may supervise Processor’s compliance with this DPA and relevant Data Protection Laws by, at Processor’s discretion, being provided suitable current certificates, reports or statements of evidence from independent bodies of compliance with the technical and organizational measures.
7.2 Demonstrating Compliance with this DPA.
7.2.1 Processor shall make available to Customer information necessary to demonstrate compliance with its obligations under this DPA and allow for (and contribute to) audits, including inspections conducted by Customer or another auditor under the instruction of the Customer for the same purposes of demonstrating compliance with the obligations set out in this DPA.
7.2.2 Customer’s right under Section 7.1 of the DPA is subject to the following:
If requested by Customer, on no more often than an annual basis during the term of the Agreement, Rivo shall (i) provide Customer with a copy of the result of its annual SOC 2, Type II audit within a reasonable period after receiving the report from its auditor.
To the extent that Processor can demonstrate compliance with its obligations set out in this DPA by adhering to an approved code of conduct, by obtaining an approved certification or by providing Customer with an audit report issued by an independent third party auditor (provided that Customer will comply with appropriate confidentiality obligations as set out in the Agreement and shall not use such audit report for any other purpose), Customer agrees that it will not conduct an audit or inspection under Section 7.1 above.
8. Cross-Border Data Transfer Under GDPR, UK GDPR
8.1. As applicable, the Parties agree that the EU SCC will apply to EU Personal Data transferred from Controller, either directly from the EU or via onward transfer, to Processor as Processor is located in the United States. The Parties agree to delete the optional provision in Clause 11 and choose Option 1 in Clause 17. The Parties agree that the blank lines in Clauses 17 and 18 shall state Ireland. The Annexes to the EU SCC are attached to this DPA as Schedule B. In the event of any conflict or inconsistency between the provisions of this DPA and the EU SCC, the provisions of the EU SCC shall prevail. In the event that any provision of the EU SCC is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of the SCC and the terms of this DPA shall remain operative and binding on the Parties.
8.2. As applicable, The Parties agree that the UK SCC will apply to UK Personal Data transferred from Controller, either directly from the UK or via onward transfer, to Processor as Processor is located in the United States. The UK SCC are attached to this DPA as Schedule C. In the event of any conflict or inconsistency between the provisions of this DPA and the UK SCC, the provisions of the UK SCC shall prevail. In the event that any provision of the UK SCC is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of the SCC and the terms of this DPA shall remain operative and binding on the Parties.
8.3. For data transfers of Personal Data other than EU Personal Data and UK Personal Data, each Party shall abide by all Applicable Laws of the territory of origin of the Personal Data.
9. Deletion of Personal Information
The duration and termination of this DPA shall be tied to the duration and termination of the Agreement. Processor shall delete all Personal Information received from Controller, following termination of the Agreement and, upon Controller’s request, provide a written report thereof. Processor should store documentation proving the orderly processing of Personal Information pursuant to the respective retention period beyond the date of the termination of this DPA.
10. Additional Provisions for CCPA
This Section 10 applies only applies to Personal Information subject to protection under the CCPA (“California Personal Information”). To the extent a term is capitalized but not defined in this Section 10, the applicable definition from the CCPA applies.
10.1 Role of the Parties. For purposes of the CCPA, the parties hereby agree that Controller is a Business and Processor a Service Provider when Service Provider is processing California Personal Information pursuant to Business instructions.
10.2 Data Processing; Transfer; Sale. Servicer Provider shall Process California Personal Information as a Service Provider solely as necessary to perform services pursuant to the Agreement (“Business Purpose”) or as otherwise permitted by the CCPA, including as described in our Privacy Policy. Service Provider shall not (i) Sell or Share California Personal Information; (ii) process California Personal Information outside the business relationship between the parties, unless required by applicable law; or (iii) combine California Personal Information provided by Controller with personal data from another source (excluding information received from another source when acting as Service Provider pursuant to the Agreement). The parties acknowledge and agree that the disclosure of California Personal Information by the Business to Service Provider does not constitute consideration between the parties.
10.3 Compliance. Service Provider shall comply with its CCPA obligations, including but not limited to the protection of California Personal Information as required by the CCPA. If Service Provider determines it is no-longer able to comply with its CCPA obligations, Service Provider shall promptly provide notice thereof.
10.4 Notice. The Business shall notify end users that their California Personal Information is being used or shared consistent with Cal. Civ. Code 1798.130.
In the event of a conflict between this Section 10 and another section of this DPA as it relates to the CCPA, Section 10 controls.
11. Miscellaneous
This DPA and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the applicable laws of the United States and the State of Delaware. The terms of this DPA shall apply only to the extent required by Applicable Data Protection Law. To the extent not inconsistent herewith, the applicable provisions of the Agreement(s) (including without limitation, indemnifications, limitations of liability, enforcement, and interpretation) shall apply to this DPA. In the event of any conflict between this DPA and the terms of an applicable Agreement, the terms of this DPA shall control solely with respect to data processing terms where required by Applicable Data Protection Law, and, in all other respects, the terms of the applicable Agreement shall control. If any provision of this DPA is found by a court of competent jurisdiction to be unenforceable or invalid, that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will remain in full force and effect. Any amendments, supplements or the cancellation of this DPA must be in writing (email sufficient).
Schedule A - Details of Processing
PURPOSE, TYPE AND SCOPE OF DATA PROCESSING, TYPE OF DATA AND CATEGORIES OF DATA SUBJECTS
SCHEDULE B - ANNEXES TO EU SCCS
A. LIST OF PARTIES
Data exporter(s): The data exporter is Customer, with contact details regarding the Customer and its representative and the activities relevant to the data being transferred as set forth in the Agreement and/or the applicable ordering document for services.
Data importer(s): The data importer is Rivo, Inc., (or “Rivo”) with contact details for Rivo and its representative and the activities relevant to the data being transferred as set forth in the Agreement and/or the applicable ordering document for services.
Activities relevant to the data transferred under these Clauses: Rivo will process the personal data transferred by the Customer to provide the services described in the Agreement and/or the applicable ordering document.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Data exporter may submit Personal Data to data importer, and which may include, but is not limited to Personal Data relating to the following categories of data subjects: the data exporter’s end-users including customers of the data exporter.
Categories of personal data transferred
Data exporter may submit Personal Data to data importer the following categories of personal data: (a) First and last name; (b) Contact information (email, phone, physical address); (c) Past Purchase Information (e.g. details concerning products or services purchased and time of purchase, but excluding payment method details); (d) location data including IP Address; and(e) other data in an electronic form used by Customer in the context of the Services.
Sensitive data transferred (if applicable)
None
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
For the term of the Agreement.
Nature of the processing
As described in the Agreement and/or the applicable ordering document.
Purpose(s) of the data transfer and further processing
To utilize data importer’s services as set forth in the Agreement and/or the applicable ordering document.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period.
For solely the term of the Agreement.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
As necessary to enable data importer to perform the services described in the Agreement and/or the applicable ordering document and for the term of the Agreement.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13:
Ireland
SCHEDULE C: APPENDICES TO UK SCC – CONTROLLER TO PROCESSOR
Part 1: Tables
Table 1: Parties
Table 2: Selected SCCs, Modules and Selected Clauses
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
Annex 1A: List of Parties: See Schedule B - EU SCC, Section A
SCHEDULE D - Sub-processors