This Data Processing Addendum (“DPA”) is incorporated by reference into Site Mailer’s Terms & Conditions available at https://elementor.com/terms/site-mailer-terms-and-conditions/ or other agreement governing the use of Elementor’s services (“Agreement”) entered by and between you, the Customer (as defined in the Agreement) (collectively, “you”, “your”, “Customer”), and Elementor Ltd. dba Site Mailer (“Elementor”, ”Site Mailer”, “us”, “we”, “our”) to reflect the parties’ agreement with regard to the Processing of Personal Data by Elementor solely on behalf of the Customer. 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.

In the event of any conflict between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Data.

 

1. DEFINITIONS

1.1   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) “Authorized Affiliate” means any of Customer’s Affiliate(s) which is explicitly permitted to use the Service pursuant to the Agreement between Customer and Elementor but has not signed its own agreement with Elementor and is not a “Customer” as defined under the Agreement.

(c) “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq.

(d) The terms, “Controller“, “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.

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 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, Israel 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, and the CCPA, as 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, which is processed by Elementor solely on behalf of Customer, under this DPA and the Agreement between Customer and Elementor.

(i)  “Services” means the services provided to Customer by Elementor in accordance with the Agreement.

(j)  “Security Documentation” means the Security Documentation applicable to the Services purchased by Customer, as updated from time to time, and made reasonably available by Elementor.

(k) “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, which may include any of the following: (a) social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number; (c) financial, credit, genetic, biometric or health information; (d) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offenses; and/or (e) account passwords in unhashed form.

(l) “Standard Contractual Clauses” means the Standard Contractual Clauses between controllers and processors, and between processors and processors, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, including all Annexes thereto, that are currently located here and here, respectively.

(m) “Sub-processor” means any third party that Processes Personal Data under the instruction or supervision of Elementor.

(n) “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 solely on behalf of Customer, (i) Customer is the Controller of Personal Data, (ii) Elementor is the Processor of such Personal Data. The terms “Controller” and “Processor” below hereby signify Customer and Elementor, respectively.

2.2  Customer’s 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.

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) rendering Personal Data fully anonymous, non-identifiable and non-personal in accordance with applicable standards recognized by Data Protection Laws and guidance issued thereunder; (v) 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 1 (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 Elementor.

2.6  CCPA 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, 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 and agrees to refrain from selling (as such term is defined in the CCPA) any Personal Information Processed hereunder without Customer’s prior written consent, 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” such Personal Information under the CCPA.

3. DATA SUBJECT REQUESTS

Processor shall, to the extent legally permitted, notify Customer or refer Data Subject or Consumer to Customer, if Processor receives a request from a Data Subject or Consumer to exercise their rights (to the extent available to them under applicable Data Protection Laws) of access, right to rectification, restriction of Processing, erasure, data portability, objection to the Processing, their right not to be subject to automated individual decision making, to opt-out of the sale of Personal Information, or the right not to be discriminated against (“Data Subject Request”). Taking into account the nature of the Processing, Processor shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible and reasonable, for the fulfillment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws. Processor may advise Data Subjects on available features for self-exercising their Data Subject Requests through the Services (where appropriate), and/or refer Data Subject Requests received, and the Data Subjects making them, directly to the Customer for its treatment of such requests. To the extent legally permitted, Customer shall be responsible for any costs arising from Processor’s provision of such assistance.

4. CONFIDENTIALITY

4.1. Processor shall ensure that its personnel and advisors engaged in the Processing of Personal Data have committed themselves to confidentiality and non-disclosure and that they have been duly informed of the confidential nature of the Personal Data and have received appropriate training on their responsibilities.

4.2 Permitted Access. Processor shall ensure that access to Personal Data by Processor’s personnel is limited to those personnel who require such access to perform the Agreement.

5. SUB-PROCESSORS

5.1. Appointment of Sub-processors. Customer acknowledges and agrees that (a) Processor’s Affiliates may be engaged as Sub-processors; and (b) Processor and Processor’s Affiliates on behalf of 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 via [email protected]. 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 Service. Customer may reasonably object to Processor’s use of an existing Sub-processor for reasons relating to the protection of Personal Data intended to be Processed by such Sub-processor, by providing a written objection to [email protected] within three (3) business days following the first use of the Services. In the event Customer reasonably objects to an existing Sub-processor, as permitted in the preceding sentence, Customer may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Processor without the use of the objected-to Sub-processor, by providing written notice to Processor; provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Processor. Customer will have no further claims against Processor due to (i) past use of approved Sub-processors prior to the date of objection or (ii) the termination of the Agreement (including, without limitation, requesting refunds) and the DPA in the situation described in this paragraph.

5.3  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 5.2.2. 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 Services 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 Account. 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.

5.4  Agreements with Sub-processors. Processor or a Processor’s Affiliate on behalf of 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 GDPR. Where a Sub-processor fails to fulfill its data protection obligations concerning its processing of Personal Data, Processor shall remain responsible for the performance of the Sub-processor’s obligations.

6. SECURITY & AUDITS

6.1  Controls for the Protection of Personal Data. Processor shall maintain industry-standard technical and organizational measures for protection of Personal Data Processed hereunder (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data, confidentiality and integrity of Personal Data, including those measures set forth in the Security Documentation), as may be amended from time to time. Upon the Customer’s reasonable request, Processor will reasonably assist Customer, at Customer’s cost and subject to the provisions of Section ‎12.1 below, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to Processor.

6.2  Audits and Inspections. Upon Customer’s 14 days prior written request at reasonable intervals (no more than once every 12 months), and subject to strict confidentiality undertakings by Customer, Processor shall make available to Customer that is not a competitor of Processor (or Customer’s independent, reputable, third-party auditor that is not a competitor of Processor and not in conflict with Processor, subject to their confidentiality and non-compete undertakings) information necessary to demonstrate compliance with this DPA, and allow for and contribute to audits, including inspections, conducted by them (provided, however, that such information, audits, inspections and the results therefrom, including the documents reflecting the outcome of the audit and/or the inspections, shall only be used by Customer to assess compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without Processor’s prior written approval. Upon Processor’s first request, Customer shall return all records or documentation in Customer’s possession or control provided by Processor in the context of the audit and/or the inspection). If and to the extent that the Standard Contractual Clauses apply, nothing in this Section 6.2 varies or modifies the Standard Contractual Clauses nor affects any Supervisory Authority’s or Data Subject’s rights under the Standard Contractual Clauses.

6.3  In the event of an audit or inspections as set forth above, Customer shall ensure that it (and each of its mandated auditors) will not cause (or, if it cannot avoid, minimize) any damage, injury, or disruption to Processor’s premises, equipment, personnel and business while conducting such audit or inspection.

6.4  The audit rights set forth in ‎6.2 above, shall only apply to the extent that the Agreement does not otherwise provide Customer with audit rights that meet the relevant requirements of Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR or the UK GDPR).

7. DATA INCIDENT MANAGEMENT AND 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 Processor’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.

8. RETURN AND DELETION OF PERSONAL DATA

Following termination of the Agreement and subject thereto, Processor shall, at the choice of Customer (indicated through the Service or in written notification to Processor), delete or return to Customer all the Personal Data it Processes solely on behalf of the Customer in the manner described in the Agreement, and Processor shall delete existing copies of such Personal Data unless Data Protection Laws require otherwise. To the extent authorized or required by applicable law, the Processor may also retain one copy of the Personal Data solely for evidence purposes and/or for the establishment, exercise, or defense of legal claims and/or for compliance with legal obligations.

9. CROSS-BORDER DATA TRANSFERS

9.1  Transfers from the EEA, Switzerland, and the United Kingdom to countries that offer adequate level of data protection. Personal Data may be transferred from EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland) (collectively, “EEA”), Switzerland and the United Kingdom (“UK”) to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the European Union, the Member States or the European Commission, Switzerland, and/or the UK as relevant (“Adequacy Decisions”), as applicable, without any further safeguard being necessary.

9.2  Transfers from the EEA, Switzerland, and the United Kingdom to other countries. If the Processing of Personal Data by Processor includes a transfer (either directly or via onward transfer):

(i)   from the EEA or Switzerland to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Processor for the lawful transfer of personal data (as defined in the GDPR) outside the EEA or Switzerland (“EEA Transfer”), the terms set forth in the Standard Contractual Clauses shall apply;

(ii)  from the UK to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Processor for the lawful transfer of personal data (as defined in the UK GDPR) outside the EEA or UK (“UK Transfer”), the terms set forth in the Standard Contractual Clauses, in accordance with Annex III thereto (UK Cross Border Transfers) shall apply;

(iii)  the terms set forth in Annex IV to the Standard Contractual Clauses (Additional Safeguards) shall apply to an EEA Transfer and a UK Transfer.

10. AUTHORIZED AFFILIATES

10.1   Contractual Relationship. The Parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, in which case each Authorized Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Processor Processes Personal Data on the behalf of such Authorized Affiliates, thus qualifying them as the “Controller”. All access to and use of the Service by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.

10.2   Communication. Customer shall remain responsible for coordinating all communication with Processor under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

11. LIMITATION OF LIABILITY

Each Party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and Processor, whether in contract, tort or under any other theory of liability, is subject to the Limitation of Liability section of the Agreement, and such limitations shall apply cumulatively for all claims under the Agreement and all DPAs established under the Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.

12. OTHER PROVISIONS

12.1   Data Protection Impact Assessment and Prior Consultation. Upon Customer’s reasonable request, Processor shall provide Customer, at Customer’s cost, with reasonable cooperation and assistance needed to fulfill Customer’s obligation under the GDPR or the UK GDPR (as applicable) to carry out a data protection impact assessment related to Customer’s use of the Service, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Processor. Processor shall provide, at Customer’s cost, reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 12.1, to the extent required under the GDPR or the UK GDPR, as applicable.

12.2   Modifications. Each Party may by at least forty-five (45) calendar days’ prior written notice to the other Party, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws, to allow Processing of Customer Personal Data to be made (or continue to be made) without breach of those Data Protection Laws. Pursuant to such notice: (a) The Parties shall make commercially reasonable efforts to accommodate such modification requested by Customer or that Processor believes is necessary; and (b) Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect the Processor against additional risks, or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein at Customer’s request. The Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer’s or Processor’s notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within 30 days of such notice, then Customer or Processor may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which are affected by the proposed variations (or lack thereof). Customer will have no further claims against Processor (including, without limitation, requesting refunds for the Services) pursuant to the termination of the Agreement and the DPA as described in this Section.

SCHEDULE 1 – DETAILS OF THE PROCESSING

Nature and Purpose of Processing

1. Providing the Service to Customer;
2. Performing the Agreement, this DPA and/or other contracts executed by the Parties;
3. Acting upon Customer’s instructions, where such instructions are consistent with the terms of the Agreement;
4. Sharing Personal Data with third parties in accordance with Customer’s instructions and/or pursuant to Customer’s use of the Services (e.g., integrations between the Services and any services provided by third parties, as configured by or on behalf of Customer to facilitate the sharing of Personal Data between the Services and such third party services);
5. Complying with applicable laws and regulations;
6. All tasks related with any of the above.

Duration of Processing

Subject to any section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, the Processor will Process Personal Data pursuant to the DPA and Agreement for the duration of the Agreement, unless otherwise agreed upon in writing.

Type of Personal Data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion.

Categories of Data Subjects

Customer may submit Personal Data to the Services which may include, but is not limited to, Personal Data relating to the following categories of Data Subjects:

• Customers, users, employees, agents, advisors, freelancers of Customer (who are natural persons)
• Prospects, customers, business partners, and vendors of Customer (who are natural persons)
• Employees or contact persons of Customer’s prospects, customers, users, business partners, and vendors
• Visitors to Customer’s online assets, customers, and consumers of Customer’s services
• Any other third-party individual whose Personal Data Customer decides to have Processed through the Services.