BLACK CROW AI · SAAS TERMS OF SERVICE


  1. SAAS SERVICES 

For purposes of these SaaS Terms of Service (“Terms,” and together with the Order Form(s) entered into by Black Crow AI, Inc. (“Black Crow”) and the customer indicated on the Order Form (“Customer”) in connection herewith, the “Agreement”), the term “Services” shall mean the services for which Customer obtains a subscription (“Subscription”) pursuant to the Order Form(s), which may include Black Crow AI predictions, Target AI and any other use case indicated on the applicable Order Form(s).

  1. RESTRICTIONS AND RESPONSIBILITIES
  1. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Black Crow or authorized within the Services); use the Services or any Software for the benefit of a third party. 
  2. Customer represents and warrants that Customer will use the Services only in compliance with Black Crow’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  Customer hereby agrees to indemnify and hold harmless Black Crow against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Black Crow has no obligation to monitor Customer’s use of the Services, Black Crow may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
  3. Customer will provide Black Crow with such cooperation, assistance, and support: (a) in connection with the marketing and promotion of the Services; and (b) as needed for Black Crow to provide the Services to Customer hereunder, as may be reasonably requested by Black Crow from time to time.
  4. Customer shall (a) allow Black Crow to list Customer as a Black Crow customer on Black Crow websites, in press releases, in conversations with journalists and in other publicly available digital and print media; (b) work with Black Crow to distribute and promote a jointly prepared press release announcing Customer's use of the Services; and (c) work with Black Crow to produce and promote a case study that highlights Customer's use of each of the Services that it uses.



  1. LICENSES

Subject to the terms and conditions of the Agreement, Black Crow hereby grants Customer a limited, non-exclusive, revocable, non-transferable license, without any right to sublicense, to access and use the Services.


  1. CONFIDENTIALITY; PROPRIETARY RIGHTS
  1. Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (the “Proprietary Information” of the Disclosing Party).  Proprietary Information of Black Crow includes non-public information regarding features, functionality, and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Black Crow to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information; and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public; (ii) was in its possession or known by its prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required to be disclosed by law.  
  2. Customer represents and warrants that each Customer Website that utilizes any Service shall contain all of the appropriate disclosures regarding the collection and use of user data as required by applicable laws and Customer shall fully comply with all of the privacy-related laws and industry privacy guidelines of each country in which it has users.  Without limiting the foregoing, each Customer Website that utilizes any Service shall include, where required by law, an opt-in mechanism and any required notices including but not limited to a legally sufficient privacy policy.
  3. Black Crow and Customer shall each fully comply with all applicable data protection laws, regulations and rules and industry privacy guidelines (e.g, the Digital Advertising Alliance code in the U.S.) of each country in which it has users, which may include the General Data Protection Regulation ("GDPR"), if applicable. Black Crow and Customer shall each indemnify, defend, and hold harmless the other from and against third party Losses resulting from any third party Claim arising out of any breach of this Section 4 by the indemnifying party.  
  4. Black Crow and Customer shall each fully comply with the California Consumer Privacy Act, if applicable. Black Crow further agrees that: (a) it shall not collect, retain, process, share or otherwise use Customer Data except for performing the Services unless as required by law or a government authority (in which case Black Crow shall use its best efforts to notify Customer before such disclosure or as soon thereafter as reasonably possible); (b) it shall act as a service provider and shall not sell Customer Data; (c) it shall take reasonable steps as a service provider to ensure that the transfer of Customer Data is not a sale of personal information; (e) except for approved sub-processors, it shall only transfer Customer Data to a third-party as specifically directed by Customer. Any sub-processors will be permitted to obtain Customer Data only to deliver the Services Black Crow has retained them to provide and are prohibited from using Customer Data for any other purpose. For the purposes of this Section 4.4, “sale”, “service provider” and “personal information” are as defined under the California Consumer Privacy Act and “approved sub-processors” means a third-party entity that processes data on behalf of and as specifically directed by Black Crow pursuant to a written contract and is thereby bound by obligations that are no less onerous than the obligations set forth in Attachment 1 to these Terms.
  5. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.  Black Crow shall own and retain all right, title and interest in and to: (a) the Services and Software, all improvements, enhancements or modifications thereto; (b) any software, applications, algorithms, inventions or other technology developed in connection with Implementation Services or support; and (c) all intellectual property rights related to any of the foregoing.     

  1. PAYMENT OF FEES
  1. Customer will pay Black Crow the then applicable fees described in the Order Form for the Subscriptions and Services in accordance with the terms therein (“Fees”).  If Customer’s use of the Services exceeds the Service Capacity set forth in the Order Form or otherwise requires the payment of additional fees (per the terms of the Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein.  If Customer believes that Black Crow has billed Customer incorrectly, Customer must inform Black Crow no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Black Crow’s customer support department (invoices@blackcrow.com) 
  2. All local taxes and duties such as Withholding Tax, Value Added Tax (VAT), Goods and Services Tax (GST), Customs and Excise duties and all such local taxes as applicable shall be borne by Customer. The Fees are payable to Black Crow net of all such local taxes and duties.  


  1. TERM AND TERMINATION
  1. In addition to any other remedies it may have, either party may also terminate the Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of the Agreement.  Customer will pay in full for the Services up to and including the last day on which the Services are provided.  All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability. 

WARRANTY AND DISCLAIMER

Each of Customer and Black Crow hereby represents and warrants to the other that: (a) it has the legal capacity and corporate right, power and authority to enter into, deliver and fully perform under the Agreement; and (b) neither the execution, delivery, nor performance of the Agreement will result in a violation or breach of any contract, agreement, order, judgment, or decree to which it is bound. EXCEPT AS MAY BE EXPRESSLY STATED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTY OR CONDITION ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY.  BLACK CROW DOES NOT WARRANT THE RESULTS OF THE SERVICES, INCLUDING THE NUMBER, TIMING OR COMPLETION OF CLICKS OR IMPRESSIONS, OR CPC VALUES. BLACK CROW DOES NOT WARRANT THAT THE SERVICES PROVIDED BY BLACK CROW ARE ERROR-FREE OR THAT CUSTOMER WILL BE ABLE TO OPERATE OR RECEIVE ANY SERVICE WITHOUT PROBLEMS OR INTERRUPTIONS.

  1. INDEMNITY 
  1. Customer shall indemnify, defend, and hold harmless Black Crow, its parent and subsidiary companies and their respective representatives, successors and permitted assigns from and against any and all third party damages, liabilities, costs, penalties and expenses, including reasonable attorneys' fees, (collectively, "Losses") resulting from any claim, judgment or proceeding (each, a "Claim") brought by a third party to the extent arising out of: (a) the infringement of any patent, copyright or trademark, or misappropriation of any trade secret or violation of any other intellectual property or proprietary right of any third party by any Customer Website; (b) any slander, libel, or defamation contained on or within any Customer Website; or (c) violation of any applicable laws, rules and regulations by any Customer Website.
  2. Black Crow  shall indemnify, defend, and hold harmless Customer, its parent and subsidiary companies and their respective representatives, successors and permitted assigns from and against any and all Losses resulting from a Claim brought by a third party to the extent arising out of: (a) the infringement of any patent, copyright, or trademark, or misappropriation of any trade secret or violation of any other intellectual property or proprietary right of any third party by any Service; or (b) violation of any applicable laws, rules and regulations by any Service.  If Customer’s use of any Service is, or in Black Crow’s opinion is likely to be, subject to a lawsuit (including any claim for equitable relief) alleging the type of infringement, misappropriation or violation specified above, or if required by settlement, Black Crow may, in its sole discretion: (i) modify the relevant Service so as to be non-infringing but with substantially equivalent functionality; (ii) procure for Customer the right to continue using the relevant Service; or (iii) if Black Crow reasonably determines that options (i) and (i) are commercially impracticable, terminate the Agreement upon written notice to Customer with respect to such Service.
  3. Each party’s obligation to indemnify the other party hereunder will be conditioned upon the indemnified party promptly notifying the indemnifying party in writing of any such Claim (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its obligations hereunder, except to the extent the indemnifying party has been damaged thereby), promptly tendering the control of the defense and settlement of any such Claim to the indemnifying party (at the indemnifying party’s expense and with the indemnifying party’s choice of counsel), and cooperating fully with the indemnifying party in defending or settling such claim including providing any information or materials necessary for the indemnifying party to perform the foregoing.  The indemnifying party will not enter into any settlement or compromise of any such Claim, which settlement or compromise would result in any financial liability to, or require any admission of fault by, the indemnified party without the indemnified party's prior consent, which will not be unreasonably withheld.


THIS SECTION 8 SETS FORTH EACH PARTY’S SOLE LIABILITY AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

  

  1. LIMITATION OF LIABILITY

EXCEPT FOR ITS OBLIGATION TO PAY LOSSES UNDER SECTION 8 FOR IP INFRINGEMENT CLAIMS OR FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 4(c), IN NO EVENT SHALL BLACK CROW BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR: (a) ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF; OR (b) DAMAGES IN THE AGGREGATE IN EXCESS OF BLACK CROW’S NET INCOME DERIVED FROM THE CUSTOMER WEBSITES UNDER THE AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.

  1. DISPUTE RESOLUTION

In the event of any dispute, controversy or claim hereunder arising out of or relating to the Agreement, either party may, upon ten (10) days’ prior written notice to the other party, initiate binding arbitration in accordance with the then-current rules of the ICC governing the arbitration of commercial disputes.  The parties shall select a mutually acceptable arbitrator within 20 days after the request of the party invoking this dispute resolution procedure.  If the parties are unable to agree upon an arbitrator, the ICC shall select a qualified, independent arbitrator.  Such arbitration will be held in New York. The decision of the arbitrator will be final and binding on the parties.  Notwithstanding the foregoing, either party may seek injunctive, equitable or similar relief (without the requirement of arbitration) in any court having jurisdiction over the parties. The Agreement shall be governed by the laws of the State of New York, without regard to the conflicts of laws provisions thereof (other than Section 5-1401 of the New York General Obligations Laws).


  1. GENERAL PROVISIONS

The Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings, or agreements (oral or written), between the parties concerning the subject matter hereof. The parties are independent contractors and no agency, partnership, joint venture, or employer-employee relationship is intended or created hereby.  The Agreement and the rights hereunder are not transferable or assignable without prior written consent of the non-assigning party, except to any successor to all or substantially all of such party’s assets, stock or business by sale, merger or otherwise.  Any assignment or attempted assignment in contravention of this provision shall be null and void.  The Agreement shall be binding upon, and inure to the benefit of, each party and their successors, heirs and permitted assigns.  The waiver by either party of any default or breach of the Agreement must be in writing to be effective and shall not constitute a waiver of any other or subsequent default or breach.  All notices required to be sent hereunder shall be in writing and shall be sent to the addresses set forth above or delivered in person.  Any provision of the Agreement which is determined by a court to be unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only as to that provision and to the minimum extent necessary without invalidating the remaining provisions of the Agreement.  Except for payment obligations, neither party will be responsible for failure or delay due to a cause beyond its reasonable control. 

Attachment 1 to the SaaS Services Agreement ("Attachment”)

Processing in accordance with Article 28 General Data Protection Regulation (GDPR) 

1. Subject matter and duration of the Contract.

  1. Subject matter. For purposes of this Attachment, Black Crow may be referred to as “Processor” and Customer may be referred to as “Controller.”  The Subject matter of the Contract results from the Agreement which is referred to hereinafter as the “Service Agreement.” 
  2. Duration. The duration of this Contract corresponds to the duration of the Service Agreement.


2. Specification of Contract Details.

  1. Nature and Purpose of the intended Processing of Data. The Nature and Purpose of Processing of personal data by Black Crow for Customer are defined in the Service Agreement. The Processing of Data shall be carried out exclusively within a Member State of the European Union (EU) or within a Member State of the European Economic Area (EEA). Each and every Transfer of Data to a State which is not a Member State of either the EU or the EEA requires the prior agreement of Customer and shall only occur if the specific Conditions of Article 44 et seq. GDPR have been fulfilled. Customer hereby agrees Black Crow may transfer Personal Data from the UK, EU or EEA into the U.S. pursuant to the Standard Contractual Clauses.
  2. Type of Data. The Subject Matter of the processing of personal data comprises IP addresses and pseudonymous online identifiers provided by Customer. Online user activity from Customer’s online properties, associated with these IP addresses and online identifiers, is also processed.
  3. Categories of Data Subjects. The category of data subjects is online users.


3. Technical and Organizational Measures.

  1. Before the commencement of processing, Black Crow shall document the execution of the necessary Technical and Organizational Measures. Insofar as the inspection/audit by Customer shows the need for amendments, such amendments shall be implemented by mutual agreement.
  2. Black Crow shall establish data security and measures that guarantee a protection level appropriate to the risk concerning confidentiality, integrity, availability and resilience of the systems.


4. Rectification, restriction and erasure of data.

Black Crow may not, on its own authority rectify, erase or restrict the processing of data that is being processed on behalf of Customer, other than on instructions from Customer. Insofar as a Data Subject contacts Black Crow directly concerning a rectification, erasure, or restriction of processing, Black Crow will forward the Data Subject’s request to Customer.


5. Quality assurance and other duties of Black Crow.

In addition to complying with the rules set forth in this Contract, Black Crow shall comply with the statutory requirements referred to in Articles 28 to 33 GDPR; accordingly, Black Crow ensures, in particular, compliance with the following:


  1. As Black Crow is established outside the EU & EEA it designates the following Representative within the Union pursuant to Article 27 ¶ 1 GDPR: 

ePrivacy GmbH / Prof. Dr. Christoph Bauer

Grosse Bleichen 21, 20354 Hamburg

+49 (0) 609451 810 / datenschutz@eprivacy.eu


  1. Confidentiality in accordance with Article 28 ¶ 3 Sentence 2 Point b, Articles 29 and 32 ¶ 4 GDPR. Black Crow entrusts only such employees with the data processing outlined in this contract who have been bound to confidentiality and have previously been familiarized with the data protection provisions relevant to their work. Black Crow and any person acting under its authority who has access to personal data, shall not process that data unless on instructions from Customer, which includes the powers granted in this Contract, unless required to do so by law.


  1. Customer and Black Crow shall cooperate, on request, with the supervisory authority in performance of its tasks.


  1. Customer shall be informed immediately of any inspections and measures conducted by the supervisory authority, insofar as they relate to this Contract. 


  1. Insofar as Customer is subject to an inspection by the supervisory authority, an administrative or summary offence or criminal procedure, a liability claim by a Data Subject or by a third party or any other claim in connection with the data processing by Black Crow, Black Crow shall reasonably support Customer.


  1. Black Crow shall periodically monitor the internal processes and the Technical and Organizational Measures to ensure that its processing is in accordance with the requirements of applicable data protection law.


6. Subcontracting.

  1. Subcontracting for the purpose of the Service Agreement is to be understood as meaning services which relate directly to the provision of the principal service. This does not include ancillary services, such as telecommunication services, postal/transport services, maintenance and user support services or the disposal of data carriers, as well as other measures to ensure the confidentiality, availability, integrity and resilience of the hardware and software of data processing equipment. Black Crow shall be obliged to make appropriate and legally binding contractual arrangements and take appropriate inspection measures to ensure the data security of Customer's data, even in the case of outsourced ancillary services.
  2. Black Crow may commission subcontractors only after prior explicit written or documented consent from Customer. Customer agrees to the commissioning of the following subcontractors on the condition of a contractual agreement in accordance with Article 28 ¶ 2-4 GDPR: See Exhibit B.

Outsourcing to additional subcontractors or changing the existing subcontractor are permissible when:

  • Black Crow submits such outsourcing to a subcontractor to Customer in writing or in text form with appropriate advance notice; 
  • Customer has not objected to the planned outsourcing in writing or in text form by the date of handing over the data to Black Crow; and
  • The subcontracting is based on a contractual agreement in accordance with Article 28 ¶ 2-4 GDPR.


7. Supervisory powers of Customer.


  1. Customer has the right, after consultation with Black Crow, to carry out inspections or to have them carried out by an auditor to be designated in each individual case. 
  2. Black Crow shall ensure that Customer is able to verify compliance with the obligations of Black Crow in accordance with Article 28 GDPR. 
  3. Black Crow may claim remuneration for enabling Customer inspections.


8. Communication in the case of infringements by Black Crow.

  1. Black Crow shall assist Customer in complying with the obligations concerning the security of personal data, reporting requirements for data breaches, data protection impact assessments and prior consultations, referred to in Articles 32 to 36 of the GDPR. These include:

  • Ensuring an appropriate level of protection through Technical and Organizational Measures that take into account the circumstances and purposes of the processing as well as the projected probability and severity of a possible infringement of the law as a result of security vulnerabilities and that enable an immediate detection of relevant infringement events.
  • The obligation to report a personal data breach promptly to Customer. 
  • The duty to assist Customer with regard to Customer’s obligation to provide information to the Data Subject concerned and to immediately provide Customer with all relevant information in this regard.
  • Supporting Customer with its data protection impact assessment 
  • Supporting Customer with regard to prior consultation of the supervisory authority

2. Black Crow may claim compensation for support services which are not included in the description of the services and which are not attributable to failures on the part of Black Crow.



9. Authority of Customer to issue instructions.

  1. Customer shall immediately confirm oral instructions (at the minimum in text form).
  2. Black Crow shall inform Customer immediately if it believes an instruction violates Data Protection Regulations. Black Crow shall then be entitled to suspend the execution of the relevant instructions until Customer confirms or changes them.

 

10. Deletion and return of personal data.


  1. After conclusion of the Service Agreement, or earlier upon request by Customer, Black Crow shall give to Customer or – subject to prior consent – destroy all documents, processing and utilization results, and data sets related to the contract that have come into its possession, in a data-protection compliant manner. 
  2. Documentation which is used to demonstrate orderly data processing in accordance with the Service Agreement shall be stored beyond the contract duration by Black Crow in accordance with the respective retention periods. It may hand such documentation over to Customer at the end of the contract duration to relieve Black Crow of this contractual obligation.


11. Geographic Scope.

This Attachment applies to the processing of personal data of only those data subjects who are in the European Union.




Exhibit A – Standard Contractual Clauses

For the purposes of the GDPR for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection. Customer shall be deemed the data exporter and Black Crow AI, 447 Broadway, 2nd Floor #382, New York, NY 10013, USA, Tel.: +1 (646) 358-1234; e-mail: privacy@blackcrow.ai.com shall be deemed the data importer; each a “party”; together “the parties”, HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.


Clause 1 

Definitions


For the purposes of the Clauses:

 

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;


(b) 'the data exporter' means Controller and any Controller affiliate;


(c) 'the data importer' means Processor and any Processor affiliate;


(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;


(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;


(f) 'technical and organizational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.


Clause 2

Details of the transfer


The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

 

Clause 3

Third-party beneficiary clause


1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary. 


  1. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. 


  1. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses. 


  1. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law. 


Clause 4

Obligations of the data exporter


The data exporter agrees and warrants: 


(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;


(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;


(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Exhibit C to this contract;


(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;


(e) that it will ensure compliance with the security measures;


(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;


(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;


(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;


(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and


(j) that it will ensure compliance with Clause 4(a) to (i).


Clause 5

Obligations of the data importer


The data importer agrees and warrants:


(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;


(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;


(c) that it has implemented the technical and organizational security measures specified in Exhibit C before processing the personal data transferred;


(d) that it will promptly notify the data exporter about:


(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii) any accidental or unauthorised access, and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;


(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; 


(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;


(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;


(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;


(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;


(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.


Clause 6

Liability


1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.


2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.


3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.


Clause 7

Mediation and jurisdiction


1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:


(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.


2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.


Clause 8

Cooperation with supervisory authorities


1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.


2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.


3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).


Clause 9

Governing Law


The Clauses shall be governed by the law of the Member State in which the data exporter is established.

 

Clause 10

Variation of the contract


The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.


Clause 11

Subprocessing


1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement. 


2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.


3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.


  1. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority. 


Clause 12

Obligation after the termination of personal data processing services


1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.


2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.




Appendix I to Standard Contractual Clauses

Data exporter. The data exporter is: Customer is the data exporter; the nature and purpose of processing of personal data by the data importer for the data exporter are defined in the Service Agreement.


Data importer. The data importer is: Black Crow is the data importer; the nature and purpose of processing of personal data by data importer for the data exporter are defined in the Service Agreement.


Data subjects. The personal data transferred concern the following categories of data subjects: Data Exporter’s online visitors. 


Categories of data/ The personal data transferred concern the following categories of data: Personal Data collected includes, but is not limited to, IP addresses, pseudonymous online identifiers provided by Customer, and online user activity associated with these IP addresses and online identifiers.


Special categories of data (if appropriate). The personal data transferred concern the following special categories of data: N/A


Processing operations. The personal data transferred will be subject to the following basic processing activities: Processing activities are set forth in the Service Agreement between the data exporter and data importer.


 

Appendix 2 to Standard Contractual Clauses

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Exhibit B: Authorized Sub-Processors

Controller acknowledges and agrees that the following entities shall be deemed Authorized Sub-Processors that may Process Personal Data pursuant to this Attachment:

Black Crow

Address / Country

Service

Amazon Web Services, Inc.

P.O. Box 81226, Seattle, WA 98108-1226 USA

Cloud Services

Snowflake Computing, Inc.

100 South Ellsworth Avenue, Suite 100, San Mateo, CA USA

Database technology

DataDog, Inc.

620 8th Avenue, New York, NY 10018  USA

Log technology


Exhibit C: Technical and Organizational Measures

System Access Control (Application Security)

  • A process for the application, approval, allocation and resetting of means of authorization and access is established, described and in use
  • Authorized individuals can only access data that is established in their individual authorization profiles    
  • Data is transmitted to and from Black Crow applications over end-to-end TLS
  • Access to the application cloud is limited to the Black Crow VPN, so users authenticating to the application must first authenticate to either the VPN server with individual login credentials
  • Corporate wireless network access requires individual user network login
  • VPN network access requires individual login credentials and multi-factor authentication
  • Both successful and unsuccessful attempts to access the Black Crow network are logged
  • VPN passwords have a minimum character limit of 7
  • VPN network access attempts timeout after 60 seconds
  • VPN network access blocked after 7 unsuccessful attempts
  • VPN network access connections timeout after 3 hours of idle time
  • Access to the application cloud is based on predefined roles
  • Access to the Black Crow VPN server is controlled by two state-of-the-art firewall and intrusion detection systems, which update their threat signatures in real-time multiple times per hour


Data Access Control & Transfer Control (Database Security)

  • All cloud data is stored virtually with the highest-grade data center security (Google and Amazon)
  • Access to partner data is restricted to only employees of Black Crow that need read access to the data to perform their job function
  • All employees are required to store their credentials in a secure location
  • Employees no longer with Black Crow are revoked access upon separation
  • Database user activity is logged and stored for at least 18 months


Separation Control

  • Regulations and norms exist regarding programming (e.g. separate test and live systems)
  • Regulations and norms exist regarding system and program testing
  • Separate processes exist for processing (saving, changing, deleting, transferring) and storage of data
  • "Coordinator" systems that orchestrate actions are separate from "control" systems that control and operate a single device/machine.
  • Job descriptions exist, which define each employee's role


Pseudonymization of Data

Psuedonymous digital identifiers are stored as 16- or 32-digit, random hexadecimal or decimal strings, with no practical way to identify the individual except a manual inspection of the user's physical device.  


Input Control

  • Permissions input, change and delete data are made based on specific user roles and permissions
  • Inputs of data are made automatically. Deletions are made automatically after the data retention period as defined in the privacy policy. Changes are not made. Any additional manual deletions are logged.
  • Transparency of the input, changing and deletion of data is made by individual usernames (not user groups)


Availability & Resistance: Further Measures via AWS

  • Backups of critical data are performed instantaneously through data redundancy. Timely secondary backups are also kept for maintenance or emergency needs
  • Cloud-based data backups are stored in data safes protected from fire and water
  • There are regular controls of the condition and labeling of key, cloud-based data storage devices
  • There is permanent monitoring of cloud-based production systems
  • Cloud-based devices are monitored for temperature and humidity in server rooms
  • Fire and smoke alarms are installed in cloud-based server rooms


Privacy Management

  • An external data protection officer has been appointed who is closely involved in the development of all processes relating to the relevant data protection requirements.
  • Staff are obliged to maintain confidentiality regarding data
  • TOMs are reviewed regularly and updated appropriately


Incident Response Management

If a data breach occurs, there are rules as to which processes should be initiated in this case, and in which form the supervisory authorities should be informed. In Incident Response process, the areas of responsibility have been determined, the technical procedure for rectifying the data breach has been defined, and the communication path to the supervisory authorities has been described, so that the supervisory authorities can be informed within 72 hours without any problems arising.


Data protection-friendly default settings

During the development of any technology or any new product, Black Crow has taken data privacy into account in the design approach right from the start. Our goal is to minimize the quantity of personal data to be collected and to reduce the scope of data processing. As part of this we stay away from any non-pseudonymous data other than IP addresses, and we avoid collecting sensitive data. Easily accessible data protection policies ensure transparency.


Job Control

  • Data processors are vetted to ensure that they comply with GDPR standards
  • Effective rights of control are agreed upon with data processor
  • The relevant technical and organizational measures of data processors are analyzed and evaluated and are regularly checked when required.