SERVICES AGREEMENT

For the purposes of this DPA, any terms defined by Applicable Privacy Laws (including any capitalized terms herein) shall have the same meaning as in the Applicable Privacy Laws. If Applicable Privacy Laws do not define such terms then definitions given in Applicable Privacy Laws for functionally similar terms will apply. References to “Paragraphs” in this DPA are to paragraphs of this DPA, excluding the  EU SCCs and UK Addendum. References to “Clauses” in this DPA will be to clauses of the Standard Contractual Clauses. References to “Sections” in this DPA are to sections of the UK Addendum. All other capitalized terms used herein, but not otherwise defined, shall have the meanings assigned to them in the Agreement. In addition to terms defined elsewhere in this DPA, the following definitions will apply to capitalized words in this DPA:

1. “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of a party or the right to receive more than fifty percent (50%) of the profits or earnings of the entity.
2. "Applicable Privacy Law(s)" means all worldwide data protection and privacy laws and regulations applicable to the Personal Data Processed by Company in connection with the Agreement, including, where applicable, EU Data Protection Law, GDPR as implemented within the UK (“UK GDPR”), Swiss Federal Act on Data Protection (“FADP”), and US Data Protection Laws.
3. "Authorized Persons" means any person or entity who provides services on Company's behalf, including Company's employees, officers, partners, principals, contractors and Sub-processors.
4. “Company Data” means data related to the operation, performance, support, provisioning, and/or use of the Services, including, but not limited to information related to: (i) invoicing, billing and other business inquiries, (ii) information on usage of the Services, and (iii) contract management.
5. “Customer” means a party to the Ordering Document that has signed this DPA.
6. “Customer Affiliate” means an Affiliate of Customer that is: (i) a Controller of Customer Data in relation to the Services; (ii) subject to Data Protection Laws; and (iii) a signing party to an Ordering Document with Company. 
7. “Customer Data” means any Personal Data that Company Processes as a Processor on behalf of the Customer in the course of providing the Services under an Ordering Document.
8. "EU Data Protection Law" means 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"), Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the Processing of Personal Data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) ("e-Privacy Directive"), and any national implementations of such laws (as may be amended, superseded or replaced).
9. “EU SCC’s” means the Standard Contractual Clauses implemented by the European Commission Decision of 4 June 2021 on standard contractual clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Counsel (as updated, amended, or superseded from time to time by the European Commission).
10. “Ordering Document” means any form provided by Company (including an electronic form or SOW), either executed by the Parties or agreed to Customer via the Site, that sets out the commercial terms of Customer’s purchase of the Services.
11. “Sensitive Information” means: (a) protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); (b) "nonpublic personal information" as defined under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); (c) data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”); (d) card holder data under the Payment Card Industry Data Security Standard; (e) Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the Processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation (the “special categories of personal data” identified in Article 9 of GDPR); or (f) social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, criminal records, or insurance numbers, passport numbers, or other sensitive personal information.
12. “Services” means the products, services, applications, tools and other resources provided or made available by Company to Customer pursuant to and as more particularly described in the Ordering Document.
13. "Sub-processor" means any third party (including applicable Company Affiliates) engaged directly or indirectly by Company to Process any Personal Data relating to this DPA and/or the Agreement.  
14. “Tracking Technologies” means cookies, tags, web beacons, pixels and/or other similar technologies.
15. “Trust Center” means the security information provided by Company at trust.meetmarigold.com
16. “UK Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner for Parties making Restricted Transfers (as defined by the UK Addendum) pursuant to the UK Data Protection Act of 2018.
17. "US Data Protection Laws” means any U.S. laws in effect which govern the privacy and protection of Personal Data, including the California Consumer Privacy Act of 2018, the California Privacy Rights Act of 2020, the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Utah Consumer Privacy Act, the Connecticut Data Privacy Act.

1. Transfer Mechanisms. Company may, in the provision of the Services, Process Customer Data that is protected by Applicable Privacy Laws which require measures to ensure the adequate protection of Personal Data subject to such transfers to third countries. Where Customer is located outside the EEA or an adequate third country, the Parties agree to enter into the Module Four of the EU SCCs and the UK Addendum as implemented within Attachment 1 to this DPA (each a “Transfer Mechanism”, collectively the “Transfer Mechanisms”) for Personal Data subject to such transfer. As applicable to the transfer of Personal Data subject to the FADP, the EU SCCs will be interpreted replacing “GDPR” with “FADP,” and with the Federal Data Protection and Information Commissioner (“FDPIC”) as the competent supervisory authority. For the purpose of the Transfer Mechanisms, Company will be the data exporter and Customer will be the data importer. The parties’ execution of an Ordering Document or Customer’s use of the Services subject to this DPA shall constitute both parties’ accession to the Transfer Mechanisms.
2. Location(s) of Processing. Location(s) of Processing. Company may, in the provision of the Services, Process Customer Data that is protected by Applicable Privacy Laws which require measures to ensure the adequate protection of Personal Data subject to such transfers to third countries. A list of current locations of Processing applicable to the Services can be found within Company’s documentation located at https://meetmarigold.com/sub-processors-privacy/ and as applicable within the Processing Details Attachment to this DPA.
3. International Transfers. Company and/or its Authorized Persons shall not Process or transfer any Personal Data in or to a territory other than the territory in which the Personal Data was first collected (nor permit such data to be so Processed or transferred) unless it takes all such measures as are necessary to ensure such Processing or transfer is in compliance with Applicable Privacy Laws (including such measures as may be communicated by Customer to Company). For the avoidance of doubt, transfers of Personal Data to Company Affiliates established within the adequate countries identified by the relevant data protection authorities in the EEA and UK will be undertaken pursuant to each territory’s applicable adequacy decision(s). Customer understands that Company will Process Personal Data in the locations specified under this Paragraph. Subject to Customer signing up for Privacy Updates, Company shall inform Customer of any new international transfers of Personal Data in advance of making the transfer and shall assist Customer in assessing the Parties' respective obligations to comply with Applicable Privacy Laws.

1. Contractual Relationship. By executing this DPA, Customer enters into this DPA on behalf of itself and, as applicable, in the name and on behalf of its Customer Affiliates, thereby establishing a separate DPA between Company and each such Customer Affiliate and for the purposes of such DPA, wherever the DPA references “Customer” or “data exporter” it shall mean “Customer Affiliate”. Each Customer Affiliate shall be bound by the obligations of this DPA.
2. Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Company under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Customer Affiliates.
3. Rights of Customer Affiliates. If a Customer Affiliate becomes a party to the DPA with Company, it shall, to the extent required under Applicable Privacy Laws, also be entitled to exercise its rights and seek remedies under this DPA, provided that: (i) solely the Customer that is the contracting party to the Ordering Document shall exercise any such right or seek any such remedy on behalf of the Customer Affiliate, and (ii) the Customer that is the contracting party to the Ordering Document shall exercise any such rights under this DPA only in the aggregate on behalf of itself and all of its Customer Affiliates. The foregoing shall not apply to the extent Applicable Privacy Laws require the Customer Affiliate to exercise a right or seek any remedy under this DPA against Company directly by itself.

1. Roles of the Parties. As between Company and Customer, Customer is the Controller of Customer Data, and Company shall Process Customer Data only as a Processor on behalf of Customer.
2. Company Data. Customer understands and acknowledges that Company is a Controller as it relates to Company Data. Notwithstanding the foregoing, Company will not retain Company Data beyond the term of this Agreement unless required to fulfill the purpose of Processing. 
3. Processing Instructions. Customer hereby instructs Company to Process Customer Data for the following purposes: (i) to perform the Services; (ii) to perform any steps necessary for the performance of the Agreement and this DPA; (iii) to perform any Processing initiated by Users in their use of the Services; and/or (iv) to comply with other reasonable instructions provided by Customer (e.g., via email or support tickets) provided such instructions are consistent with the terms of the Agreement and this DPA (collectively, the "Instructions"). Company shall immediately inform Customer if, in Company’s opinion, an instruction infringes Applicable Privacy Laws or if Company can no longer comply with its obligations under this DPA.
4. Details of the Processing. The details of the processing are summarized in Processing Details Attachment.
5. Customer’s Processing of Personal Data.  Customer shall comply, and shall cause each User to comply, with its obligations as a Controller under Applicable Privacy Laws in respect of the Processing of Personal Data and any Processing instructions it issues to Company. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Customer and/or its Users (as applicable) acquired Customer Data. Notwithstanding the foregoing, in the event Company becomes aware that the Personal Data it has received is inaccurate, or has become outdated, it shall inform Customer without undue delay and cooperate with Customer’s request to erase or rectify the data. Without prejudice to the generality of the foregoing, Customer shall be responsible for complying with, and shall be responsible for causing its Users to comply with all laws (including Applicable Privacy Laws), including those relating to acquiring consents, the use of third party Processors such as Company, and the content of the emails and its email deployment practices.

1. Processing Principles. Irrespective of the location of Processing, the location of Company, and/or the location of Customer, Company shall Process Personal Data:In compliance with its obligations as a Processor under Applicable Privacy Laws;In accordance with the applicable Transfer Mechanism(s);According to the instructions of the Customer as defined herein; andIn compliance with the confidentiality provisions of the Agreement.
2.  

No Rights as a Controller. Except as it relates to Company Data, Company acknowledges that it has no right, title or interest in any Personal Data Processed pursuant to the Agreement and may not sell, rent or lease such data to anyone. For the avoidance of doubt, nothing in the Agreement, this DPA, or any part of the Services provided constitutes sharing for cross-context behavioral advertising or selling, as defined within the Applicable Privacy Laws, of Personal Data between the parties.

Company shall, to the extent legally permitted, and in so far as it is possible to identify the Customer as the Controller of the data, promptly notify Customer if it receives a request from a Data Subject seeking to exercise the following Data Subject rights:   access, rectification, restriction of Processing, erasure ("right to be forgotten"), data portability, objection to the Processing, or to not be subject to automated individual decision-making  (each a "Data Subject Request'). Taking into account the nature of the Processing, Company shall assist Customer by appropriate technical and organizational measures, in so far as this is possible, for the fulfillment of the Customer's obligations to respond to a Data Subject Request under applicable Data Protection Laws.  In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Company shall upon Customer's written request provide reasonable co-operation to assist Customer to respond to any such Data Subject Requests, to the extent Company is required under Applicable Privacy Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from Company's provision of such assistance, including any fees associated with provision of additional functionality.  In the event any Data Subject Request is made directly to Company, Company shall not respond to such communication directly without Customer's prior authorization (except to instruct the Data Subject to reach out to Customer), unless legally compelled to do so. If Company is required to respond to such request, Company will promptly notify Customer and provide it with a copy of the request, unless legally prohibited from doing so.

Return or deletion of all Personal Data pursuant to the applicable Transfer Mechanism(s) or Applicable Privacy Laws shall be initiated by Company only after receipt of Customer’s written request. In the absence of a specific written request from Customer to delete Customer Data, the Customer Data will be deleted in accordance with Company’s established data retention policies.

1. Customer acknowledges that the Company Security Measures, as specified in the Trust Center and summarized in Attachment 3 included within this DPA, are subject to technical progress and development and that Company 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 Services. Notwithstanding Company’s Security Measures and obligations under Applicable Privacy Laws, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to the Services, protecting the security of Customer Data during any transit from the Services unless the Customer Data is transferred using technology developed by Company, and taking any appropriate steps to protect account passwords and/or backup any Customer Data uploaded to the Services.
2. Company will notify Customer without undue delay after becoming aware of a confirmed Personal Data Breach and will provide all assistance and information relating to the Personal Data Breach as it becomes known or as is reasonably requested in writing by Customer. Company will use reasonable efforts to mitigate and, where possible, to remedy the effect of any Personal Data Breach in accordance with the Security Measures. Where required by applicable Data Protection Laws, Company shall document the facts surrounding the Personal Data Breach, the effects of the Personal Data Breach, and any remedial action taken.
3. Any notification assistance provided by Company pursuant to this DPA that exceeds 8 hours of effort by Company or average monthly fees paid by Customer to Company shall be at Customer’s expense.

Customer understands and acknowledges that the Services are not configured to Process, receive, and/or store Sensitive Information. As such, Customer agrees not to, and not to permit Users to, transmit, request, provide Company with access to, submit, store, or include any Sensitive Information through the Services. Customer agrees that Company may terminate this Agreement immediately, without refund, if Customer is in violation of this paragraph.

Upon Customer's request, Company will provide Customer with copies of any of Company's relevant data protection audit report summaries and/or certifications and/or responses to questionnaires as reasonably required by Customer to verify Company's compliance with Applicable Privacy Laws ("Audit Information"). For the purposes of compliance with any applicable Transfer Mechanism(s), Customer agrees to leverage existing documentation and certifications provided by Company to the extent such documentation satisfies the requirements of Applicable Privacy Laws. Company shall further provide written responses to all reasonable written requests for information made by Customer related to data protection that Customer may have in connection with the Audit Information. If Customer determines in its reasonable discretion that the Audit Information does not provide all information necessary to demonstrate compliance with EU Data Protection Law, upon prior written request by Customer and at Customer’s sole expense and during normal operating hours of Company and its Sub-processors, allow for and contribute to audits of the processing activities covered by this DPA, including inspections, conducted by the Customer or another auditor mandated by the Customer.

1. Engagement of Company Affiliates as Sub-processors. Customer hereby provides its consent to the Processing of Customer Data by the Company Affiliates listed under the Processing Details Attachment  applicable to the Services. Customer acknowledges and hereby agrees and consents to the engagement of additional Company Affiliate Processors, as listed under Processing Details Attachment, if Customer purchases additional Services.
2. Engagement of Sub-processors. Customer hereby provides its consent to the Processing of Customer Data by the Sub-processors listed at https://meetmarigold.com/sub-processors-privacy/. Company may engage additional Sub-processors by complying with the applicable Transfer Mechanism(s) or, if Transfer Mechanism(s) are inapplicable, in compliance with Company’s obligations under Applicable Privacy Laws. To receive notices of intended updates to Sub-processors, Customer must sign up to receive Privacy Updates.
3. Objection to Sub-processor. If Customer objects, on reasonable data protection grounds, to the appointment or replacement of a Sub-processor, Customer must notify Company in writing within 10 days of receiving written notification of such change from Company (the “Objection Period”). In such event, the parties shall discuss in good faith commercially reasonable alternative solutions. If the parties cannot reach resolution within 30 days of the Objection Period (the “Resolution Period”), Company will either not appoint or replace the Sub-processor or, if this is not possible, Customer may terminate the Agreement (in whole or in part), by providing written notice to Company within 10 days following the Resolution Period. 
4. Sub-processor DPAs. Company and its Sub-processors shall enter into a data protection agreement that includes appropriate technical and organizational measures no less protective than those found in this DPA. Where a Sub-processor fails to fulfill its data protection obligations, Company shall remain fully liable to the Customer. At Customer’s written request, Company will disclose copies of its Sub-processor DPAs without undue delay. Customer understands that these DPAs may be redacted to protect the confidential information of Company or its Sub-processors which is not relevant to either party’s compliance with this DPA.

Any cooperation or assistance by Company in addressing and/or resolving disputes caused by the acts or omissions of Customer pursuant to any applicable Transfer Mechanism or Applicable Privacy Laws shall be at Customer’s expense.

To the extent Company is required under Applicable Privacy Laws or any applicable Transfer Mechanism(s), Company will assist Customer to conduct a DPIA or TIA and, where legally required, consult with applicable data protection authorities in respect of any proposed Processing activity that present a high risk to Data Subjects.

Any claim or remedies the Customer may have against Company, any of Company Affiliates and their respective employees, agents and Sub-processors arising under or in connection with this DPA, including: (i) for breach of this DPA; (ii) as a result of fines (administrative, regulatory or otherwise) imposed upon Customer; (iii) under applicable Privacy Laws; and (iv) breach of Company (or any of Company Affiliates or their respective employees, agents or Sub-processors) obligations under the applicable Transfer Mechanism(s), will be subject to any limitation and exclusion of liability provisions (including any agreed aggregate financial cap) that apply under the Agreement. Notwithstanding the foregoing, the Customer's maximum recovery arising out of any claim against Company, Company Affiliates, and their respective employees, agents for any losses caused directly or indirectly by a Sub-processor shall be limited to Company's recovery from that Sub-processor where such recovery is less than the maximum aggregate liability set out in the Agreement. For the avoidance of doubt, Company and Company Group’s total liability for all claims from the Customer and all Customer Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under the Agreement, including by Customer and all Customer Affiliates, and, in particular, shall not apply individually or severally to Customer or to any Customer Affiliate that is a contractual party to any such DPA. Notwithstanding the foregoing, in no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.

1. Termination.  This DPA and any applicable Transfer Mechanisms will terminate simultaneously and automatically with the termination or expiration of the Agreement. Notwithstanding the foregoing, until Customer requests deletion of the Customer Data, the Company shall continue to ensure compliance with any applicable Transfer Mechanism(s) for as long as Customer Data is retained.
2. Modifications & Severability. Applicable Privacy Laws may be updated or changed from time to time.  In the event of any such changes, Customer agrees to negotiate in good faith with Company to amend the Agreement, this DPA and/or the Services to ensure each party's continuing compliance with Applicable Privacy Laws, the Agreement, and this DPA.  In the event that the parties cannot agree upon any such amendment, notwithstanding anything in the Agreement or this DPA to the contrary, Company will have the right to terminate the Agreement (and any applicable Ordering Documents) without penalty. This DPA may not be modified except by a subsequent written instrument signed by both parties. If any part of this DPA is held unenforceable, the validity of all remaining parts will not be affected.
3. Order of Precedence. Nothing in the DPA varies or modifies the Transfer Mechanisms nor affects any supervisory authority’s or Data Subject’s rights under Applicable Privacy Laws. As it relates to either party’s rights or obligations under Applicable Privacy Law, any conflict or inconsistency between the body of this DPA, an applicable Transfer Mechanism, and any data privacy provisions set out in any Agreement shall be resolved as follows: 1) the applicable Transfer Mechanism(s); 2) body of this DPA; and 3) the Agreement. For all other contractual matters, the terms of the Agreement shall control. 
4. Entire Agreement. This DPA, together with the Agreement, contains the entire agreement and understanding between the parties concerning its subject matter. Each party acknowledges that it has read and understood the terms of this DPA, agrees to be bound by the terms of this DPA, and has caused its duly authorized officers to execute this DPA on their behalf. This DPA supersedes all prior proposals, representations, agreements and understandings, written or oral, concerning its subject matter. This DPA may be executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to constitute one and the same document. The parties may execute and deliver signatures to this DPA electronically, including by facsimile or portable document format (PDF) file.