Data Processing Agreement

 

This Data Processing Agreement (“DPA”), forms part of the Rybbon Terms of Service (the “Agreement”) and reflects the agreement between Rybbon and you (the “Customer”) with respect to the terms governing the Processing of Customer Data under the Agreement.

Revised November 20, 2020

1. Definitions

“Customer Data” means any Personal Data that Rybbon receives and processes on behalf of Customer as a Data Processor in the course of providing Service, 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.

“Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU GDPR and California Consumer Privacy Act (CCPA).

“Data Subject” means the person to whom Personal Data relates.

“Process” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Standard Contractual Clauses” means the standard contractual clauses for Processors approved pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010, in the form set out at Annex 1; as may be amended, superseded, or replaced.

“Sub-processor” means any Data Processor engaged by Rybbon or its subsidiaries to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or this DPA

 

2. Roles and Scope of Processing

2.1 Role of the Parties. As between Rybbon and Customer, Customer is the Data Controller of Customer Data, and Rybbon shall process Customer Data only as a Data Processor acting on behalf of Customer. When processing Personal Data of California residents pursuant to this DPA, the parties acknowledge and agree that Customer is a “Business” and Rybbon is a “Service Provider” for the purposes of the CCPA.

2.2 Customer Processing of Customer Data. Customer agrees that (i) it shall comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to Rybbon; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Rybbon to process Customer Data and provide the Service pursuant to the Agreement and this DPA.

2.3 Rybbon Processing of Customer Data Rybbon shall comply with all Data Protection Laws that apply to its Processing of Customer Data under this DPA. Rybbon shall process Customer Data only for the purposes described in this DPA. Customer agrees that, subject to applicable Data Protection Laws, Rybbon may Process Customer Data in the United States and other jurisdictions where Rybbon and its Sub-processors are located. Rybbon shall abide by and process Personal Data that is subject to the protection of European Data Protection Laws in compliance with the Standard Contractual Clauses.

2.4 Merchants. Rewards sent to Recipients may require Recipients to provide Personal Data to the Reward Merchant in order to receive and use the Reward. The Merchant’s use of Personal Data is subject to the Merchant’s terms and conditions associated with the use of that Reward and is excluded from this DPA. Rybbon is not liable for any claims related to services provided by Merchants.

2.5 Details of Data Processing

Rybbon’s use of Customer Data shall be limited to the following purposes:

      • (a) To perform and provide the Service to the Customer
      • (b) To provide customer support to Customer and Recipients including administrative contact with Recipients
      • (c) To protect the security of Rybbon systems
      • (d) To detect use of the Service that is fraudulent or not compliant with the Agreement
      • (e) To meet all legal and regulatory obligations applicable to Rybbon
      • (f) To use aggregate and anonymous Customer Data to improve and enhance the Service.

3. Confidentiality

Rybbon shall not sell or market Customer Data to any third party. Rybbon may share Customer Data with third-parties for law enforcement purposes. Rybbon shall ensure that any person who is authorized by Rybbon to process Customer Data (including its staff, agents, and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

 

4. Subprocessing

4.1 Authorized Sub-processors. Customer agrees that Rybbon may engage Sub-processors to process Customer Data on Customer’s behalf. The Sub-processors currently engaged by Rybbon may be obtained by making a request to dataprotection@rybbon.net Before appointing a new Sub-processor to process Customer Data, Rybbon will provide Customer at least 30-days prior notice. If Customer objects to the choice of Sub-processor, Customer may provide Rybbon notice of termination and Rybbon will provide a pro-rated refund for any prepaid but unused fees. Rybbon’s use of any Sub-processor will not relieve, waive, or diminish any obligation Rybbon has under this DPA or the Agreement and Rybbon is liable for acts and omissions of any Sub-processor.

4.2 Sub-processor Obligations.Where Rybbon is entering into an engagement with a Sub-processor, Rybbon shall enter into an agreement setting out the respective obligations of each party including obligations that the Sub-processor has measures in place to protect Customer Data against unauthorized disclosure of or access to Customer Data that protects Customer Data to the same standard required under this DPA.

 

5. Security & Compliance

5.1 Security Measures. Rybbon shall implement and maintain appropriate technical and organizational security measures to prevent unauthorized destruction, loss, alteration, disclosure of or access to Customer Data (a “Security Breach”). Customer may request more information, on a confidential basis, about Rybbon’s security measures by contacting dataprotection@rybbon.net.

5.2 Notification. Rybbon shall inform Customer within 72 hours of becoming aware of any Security Breach. To the extent that a Security Breach is caused, or is otherwise suffered, by Rybbon, Rybbon shall investigate, identify, and remediate the Security Breach as soon as possible, and within a reasonable time frame.

5.3 Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Service, including securing its account authentication credentials and protecting the security of Customer Data when in transit to and from the Service.

5.4 Compliance. We will make all information reasonably necessary to demonstrate compliance with this DPA available to you and allow for and contribute to audits, including inspections by you, with a prior notice of at least 30 days, in order to assess compliance with this DPA. You acknowledge and agree that you will exercise your audit rights under this DPA by instructing us to comply with the audit measures described in this sub-section (g). You acknowledge that the Service is hosted by our data center partners who maintain independently validated security programs (including SOC 2 and ISO 27001) and that our systems are regularly tested by independent third party penetration testing firms. Upon request, we will supply (on a confidential basis) a summary copy of its penetration testing report(s) to you so that you can verify our compliance with this DPA. Further, at your written request, we will provide written responses (on a confidential basis) to all reasonable requests for information made by you necessary to confirm our compliance with this DPA, provided that you will not exercise this right more than once per calendar year. The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the foregoing specifications.

 

6. Retention

Upon termination of the Agreement, Rybbon keeps Customer Data for 5 years (the “Retention Period”) to comply with Rybbon’s and Merchants’ legal and regulatory requirements. Following the Retention Period, subject to applicable law, Rybbon shall either delete Customer Data or anonymize it. This requirement shall not apply to the extent Rybbon is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data Rybbon shall securely isolate and protect from any further processing.

 

7. Deletion

Customer shall send all requests for deletion of Customer Data to dataprotection@rybbon.net. Retention policies described in section 6 of this DPA may prevent Rybbon from fulfilling such requests. If Rybbon is unable to delete Customer Data for technical reasons, Rybbon will apply measures to ensure that Customer Data is blocked from any further Processing.

 

8. Data Subject Requests

Rybbon shall promptly notify Customer if it receives any requests from Data Subjects to exercise their rights under applicable Data Protection Laws (“Data Subject Requests”). Rybbon shall not respond to any such Data Subject Request without Customer’s prior written consent except to confirm that the request relates to Customer; either provide Customer with the ability to fulfill such Data Subject Request independently or shall fully cooperate with Customer so that Customer can respond to such Data Subject Requests within the timeframe required under Data Protection Laws. For the avoidance of doubt, Rybbon shall provide all reasonable assistance to Customer in complying with any Data Subject Requests.

 

Contact Details

Rybbon has a Data Protection Officer and all enquiries in respect of this DPA should be directed to the Data Protection Officer via dataprotection@rybbon.net.

ANNEX 1

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The “Customer” as defined in the Rybbon Terms of Service
(the data exporter)
And
Rybbon, Inc., 1751 Pinnacle Drive Suite 600, McLean, VA 22102 U.S.A.
(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 the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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, unauthorized 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.

2. 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.

3. The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

4. 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 Appendix 2 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, unauthorized 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 sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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 Appendix 2 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 unauthorized access; and
  • (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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 sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;

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

(j) to send promptly a copy of any sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor 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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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

Sub-processing
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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.

2. The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for sub-processing 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.

4. The data exporter shall keep a list of sub-processing 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 sub-processor 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 sub-processor 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 1 to the Standard Contractual Clauses

Data exporter
The data exporter is the “Customer” referenced in the Rybbon Terms of Service.

Data importer
The data importer is Rybbon, Inc.

Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
Data exporter may submit Personal Data through its use of the data importer’s Services, the extent of which is determined and controlled by data exporter, and which may include Personal Data relating to the following data subjects:

  • Any individual to whom the data exporter is sending a Reward through its use of the data importer’s Services
  • Any employees, contractors, customers, or suppliers of data exporter

Categories of data
Data exporter may submit Personal Data through its use of the data importer’s Services, the extent of which is determined and controlled by data exporter, and which may include the following categories of Personal Data:

  • First and last name
  • Company
  • Email

Special categories of data (if appropriate)
Not applicable.

Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
The objective of Processing of Personal Data by data importer is the performance of the Services pursuant to the Terms of Service.

 

Appendix 2 to the 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):

Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in the SECURITY POLICIES applicable to the specific Services purchased by data exporter, and accessible via SECURITY POLICIES or otherwise made reasonably available by data importer. Data Importer will not materially decrease the overall security of the Services during a subscription term.