This Data Processing Addendum ("DPA") forms part of and is subject to the provisions of LaunchKit’s Terms of Service Agreement (the “Agreement”). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
"Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
"Agreement" means LaunchKit’s Terms of Service, which govern the provision of the Services to Customer, as such terms may be updated by LaunchKit from time to time.
"Applicable Data Privacy Laws" means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, the EU Data Protection Law and the California Consumer Privacy Act (CCPA).
"California Consumer Privacy Act" or "CCPA" means the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020.
"Control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term "Controlled" shall be construed accordingly.
"Customer Data" means any Personal Data that LaunchKit processes on behalf of Customer as a Data Processor in the course of providing Services, as more particularly described in this DPA.
"Data Controller" means an entity that determines the purposes and means of the processing of Personal Data.
"Data Processor" means an entity that processes Personal Data on behalf of a Data Controller.
"Personal Data" means any information relating to an identified or identifiable natural person.
"Processing" has the meaning given to it in the CCPA and "process", "processes" and "processed" shall be interpreted accordingly.
"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
"Services" means any product or service provided by LaunchKit to Customer pursuant to the Agreement.
"Sub-processor" means any Data Processor engaged by LaunchKit or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA..
2.1 The parties agree that this DPA shall replace any existing DPA the parties may have previously entered into in connection with the Services.
2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, the Agreement shall prevail to the extent of that conflict.
2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
2.4 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.5 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Applicable Data Privacy Laws.
3.1 This DPA applies where and only to the extent that LaunchKit processes Customer Data that is subject to Applicable Data Privacy Laws on behalf of Customer as Data Processor in the course of providing Services pursuant to the Agreement.
4.1 Role of the Parties. As between LaunchKit and Customer, Customer is the Data Controller of Customer Data, and LaunchKit shall process Customer Data as a Data Processor acting on behalf of Customer.
4.2. Customer Processing of Customer Data. Customer agrees that (i) it shall comply with its obligations as a Data Controller under Applicable Data Privacy Laws in respect to its processing of Customer Data and any processing instructions it issues to LaunchKit; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Applicable Data Privacy Laws for LaunchKit to process Customer Data and provide the Services pursuant to the Agreement and this DPA.
4.3 LaunchKit Processing of Customer Data. LaunchKit shall process Customer Data only for the purposes described in this DPA and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to LaunchKit in relation to the processing of Customer Data.
4.4 Details of Data Processing
(a) Subject matter: The subject matter of the data processing under this DPA is the Customer Data.
(b) Duration: As between LaunchKit and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
(c) Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of LaunchKit’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
(d) Nature of the processing: The Services as described in the Agreement and initiated by Customer from time to time.
(e) Categories of data subjects may include: Customers, Customer’s End Users and any other individuals whose personal data is included in Content.
(f) Types of Customer Data may include: Data relating to Customer, Customer’s End Users or other individuals whose personal data is included in Content which is processed as part of the Services in accordance with instructions given through Customer Account.
4.5 Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that LaunchKit shall have a right to use, disclose, and sell data relating to the operation, support and/or use of the Services and data provided by the Customer and Customer’s End Users for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered Personal Data under Applicable Data Privacy Laws, LaunchKit is the Data Controller of such data and accordingly shall process such data in accordance with the LaunchKit Privacy Policy and Applicable Data Privacy Laws.
5.1 Authorized Sub-processors. Customer agrees that LaunchKit may engage Sub-processors to process Customer Data on Customer's behalf.
5.2 Sub-processor Obligations. LaunchKit shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Customer Data to the standard required by Applicable Data Privacy Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause LaunchKit to breach any of its obligations under this DPA.
6.1 Security Measures. LaunchKit shall implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data.
6.2 Updates to Security Measures. Customer is responsible for reviewing the information made available by LaunchKit relating to data security, if any, and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under the Applicable Data Privacy Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that LaunchKit 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 purchased by the Customer.
6.3 Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, 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 and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
Data center locations. LaunchKit may transfer and process Customer Data anywhere in the world where LaunchKit, its Affiliates or its Sub-processors maintain data processing operations. LaunchKit shall at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of the Applicable Data Privacy Laws.
8.1 Confidentiality of processing. LaunchKit shall ensure that any person who is authorized by LaunchKit to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
8.2 Security Incident Response. Upon becoming aware of a Security Incident, LaunchKit shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
Upon termination or expiration of the Agreement, LaunchKit may retain all Customer Data stored within Customer’s Account, except to the extent required by applicable law..
11.1 The Services provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Customer Data, which Customer may use to assist it in connection with its obligations under Applicable Data Privacy Laws, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Customer Data within the Services, LaunchKit shall (at Customer's expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to LaunchKit, LaunchKit shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If LaunchKit is required to respond to such a request, LaunchKit shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
11.2 If a law enforcement agency sends LaunchKit a demand for Customer Data (for example, through a subpoena or court order), LaunchKit shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, LaunchKit may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then LaunchKit shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedies unless LaunchKit is legally prohibited from doing so.
11.3 To the extent LaunchKit is required under Applicable Data Privacy Laws, LaunchKit shall (at Customer's expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
The liability of each party under this Data Processing Addendum is subject to the exclusions and limitations of liability set out in the Agreement. Customer agrees that any regulatory penalties or claims by data subjects or others incurred by LaunchKit in relation to data controlled by Customer that arise as a result of, or in connection with, Customer’s failure to comply with Customer obligations under this Data Processing Addendum or Applicable Data Privacy Laws shall reduce LaunchKit’s maximum aggregate liability to Customer under the Agreement in the same amount as the fine and/or liability incurred by us as a result.
Customer is responsible for any costs and expenses arising from LaunchKit’s compliance with Customer instructions or requests pursuant to the Agreement (including this Data Processing Addendum) which fall outside the standard functionality made available by LaunchKit generally through the Services.