Data Processing Addendum

 

This Data Processing Agreement (“DPA”) is entered into by and between Benchmark Email (“Processor” or “Benchmark Email”) and the Customer (“Controller” or “User”) who is using Benchmark Email’s services (the “Services”).

 

This DPA governs the processing of Personal Data by Benchmark Email on behalf of the Controller, in accordance with the terms outlined in the Benchmark Email Terms of Use. By using the Services, the Controller agrees to the terms of this DPA, which forms part of the overall contractual relationship between the parties.

 

The Processor will process Personal Data solely for the purpose of providing the Services to the Controller, in compliance with applicable data protection laws, including the General Data Protection Regulation (GDPR) and other relevant privacy laws.

 

This DPA reflects the shared commitment of both parties to comply with applicable data protection laws and to ensure the security and confidentiality of Personal Data. Any capitalized terms not defined in this DPA shall have the meanings set forth in the Benchmark Email Terms of Use.

 

1. Definitions

 

For the purposes of this DPA, the following terms have the meanings set out below:

 

Customer Data: Any Personal Data that Benchmark Email processes on behalf of the Customer (Data Controller) as a Data Processor in the course of providing its Services.

 

Data Controller: The entity that determines the purposes and means of processing Personal Data, as defined in GDPR. In the context of this DPA, the Controller is the customer of Benchmark Email who collects, owns, and is responsible for the Personal Data that is processed using the Services.

 

Data Processor: The entity that processes Personal Data on behalf of the Data Controller, as defined in GDPR. In the context of this DPA, Benchmark Email acts as the Data Processor.

 

Data Protection Laws: All applicable laws and regulations governing the processing of Personal Data, including GDPR, the California Consumer Privacy Act (CCPA), and other national or regional data protection laws.

 

Data Subject: An identified or identifiable natural person whose Personal Data is processed under this DPA. This refers to the individual whose data is collected, stored, and processed.

 

Europe / EU: Refers to the European Union (EU) or European Economic Area (EEA), including all EU member states and countries in the EEA that are subject to GDPR.

 

GDPR: The General Data Protection Regulation (EU) 2016/679, as amended from time to time, and any other applicable data protection laws governing the processing of Personal Data in the European Economic Area (EEA).

 

Personal Data: Any information relating to an identified or identifiable natural person, as defined in the GDPR. This includes, but is not limited to, names, contact information, and any other data that can directly or indirectly identify a person.

 

Personal Data Breach: A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, transmitted, stored, or otherwise processed.

 

Processing: Any operation or set of operations performed on Personal Data, whether by automated means or otherwise, including but not limited to collection, storage, retrieval, use, disclosure, erasure, or destruction of Personal Data.

 

Services: The email marketing and related services provided by Benchmark Email, as described in the Benchmark Email Terms of Use, which the Controller subscribes to and uses to process Personal Data.

 

Sub-processor: Any third party engaged by Benchmark Email to process Personal Data on behalf of the Controller. A Sub-processor may include service providers, contractors, or other entities that perform services related to the Processing of Personal Data.

 

Standard Contractual Clauses (SCCs): The legal provisions adopted by the European Commission that allow for the lawful transfer of Personal Data from the EEA to third countries outside the EEA, in compliance with GDPR requirements.

 

Terms: Refers to the Terms of Use and all related policies referenced herein, including our Privacy Policy, Anti-Spam Policy, and any other referenced documents.

 

UK Addendum: The provisions that ensure compliance with UK data protection laws for data transfers from the UK, in accordance with the UK GDPR, post-Brexit.

 

US Data Protection Laws: Refers to privacy and data protection laws applicable in the United States, including the California Consumer Privacy Act (CCPA) and other federal and state laws governing data privacy.

 

2. Roles and Responsibilities

 

This section outlines the roles and responsibilities of both the Customer and Benchmark Email in the processing of Customer Data under this DPA.

 

2.1 Role of the Customer

The Customer is the entity that determines the purposes and means of processing Personal Data, and, as such, is the Data Controller under applicable data protection laws, including GDPR. The Customer has the following key responsibilities:

 

• Lawful Basis for Processing: The Customer is responsible for ensuring that the processing of Personal Data is lawful under applicable Data Protection Laws. This includes obtaining any necessary consents from Data Subjects and ensuring that the Customer has the right to provide Personal Data to Benchmark Email for processing.
• Providing Instructions: The Customer will provide Benchmark Email with clear and lawful instructions for processing Customer Data in the course of providing the Services. Benchmark Email will only process Customer Data in accordance with these instructions, as set forth in this DPA.
• Data Subject Rights: The Customer is responsible for fulfilling Data Subject rights requests, such as access, rectification, deletion, and data portability, in accordance with applicable data protection laws. Benchmark Email will assist the Customer in complying with these requests as needed.
• Compliance with Data Protection Laws: The Customer is responsible for ensuring that the Personal Data it provides to Benchmark Email is collected, processed, and transferred in compliance with applicable Data Protection Laws.
• Notification of Data Breaches: The Customer must notify Benchmark Email promptly if it becomes aware of a Personal Data Breach involving its Personal Data.

 

2.2 Role of Benchmark Email

Benchmark Email, as the Data Processor, processes Customer Data on behalf of the Customer in accordance with the instructions provided. The Processor has the following key responsibilities:

 

• Processing Instructions: Benchmark Email will process Customer Data only as instructed by the Customer, for the purposes of providing the agreed-upon Services. Benchmark Email will not process Personal Data for any other purposes unless required by applicable law. For a detailed description of the specific data processing activities, including the types of data, data subjects, and processing operations, please refer to Annex 1: Details of Data Processing.
• Sub-processors: Benchmark Email may engage Sub-processors to assist in processing Customer Data. Customer consents to Benchmark Email’s use of Sub-Processors. Benchmark Email provides a list of approved Sub-processors in Annex 3: Sub-processors List, and notify Customer of any changes to this list.
• Security of Personal Data: Benchmark Email will implement appropriate technical and organizational measures to safeguard the security and confidentiality of Personal Data.
• Assisting with Data Subject Rights: Benchmark Email will assist the Customer in responding to Data Subject requests, including requests for access, rectification, erasure, and data portability.
• Data Breach Notification: Benchmark Email will promptly notify the Customer of any Personal Data Breach involving Customer Data. This notification will be made without undue delay and, where possible, within 72 hours.
• Compliance with Data Protection Laws: Benchmark Email will comply with all applicable Data Protection Laws, including GDPR, in processing Personal Data.

 

2.3 Joint Responsibilities

While the Customer and Benchmark Email each have their own distinct roles, both parties share responsibility for ensuring that Personal Data is processed in compliance with applicable data protection laws. Both parties agree to:

 

• Cooperate: The Customer and Benchmark Email will cooperate to address any concerns related to the processing of Personal Data and ensure compliance with applicable laws.
• Audit and Monitoring: The Customer may request information or audits to verify that the processing is carried out in accordance with this DPA. Benchmark Email will provide reasonable access and assistance to facilitate such audits or monitoring.
• Data Transfer Compliance: Both parties will ensure that any transfer of Personal Data across borders complies with the relevant Data Protection Laws, including the use of Standard Contractual Clauses (SCCs) or other legal mechanisms for cross-border data transfers.

 

2.4 Data Processing Instructions

Benchmark Email will process Personal Data only as instructed by the Customer. If Benchmark Email believes that any instruction from the Customer is unlawful, Benchmark Email will inform the Customer without delay.

 

3. Security

 

Benchmark Email shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk associated with processing Personal Data, including measures outlined in Annex 2: "Security Measures". These measures are designed to protect Personal Data against unauthorized or unlawful processing, accidental loss, destruction, or damage, and to ensure the confidentiality, integrity, and availability of the data.

 

3.1 Confidentiality

Benchmark Email will ensure that any person it authorizes to process Personal Data is subject to a duty of confidentiality, whether under a contractual obligation or law, to protect the confidentiality of Personal Data.

 

3.2 Customer Responsibilities

Customer acknowledges that it is responsible for ensuring that any Personal Data it provides to Benchmark Email is collected, processed, and transferred in accordance with applicable Data Protection Laws. Customer is responsible for reviewing the information made available by Benchmark Email relating to its data security and making an independent determination as to whether the Services meet the Customer’s requirements and legal obligations under Data Protection Laws.

 

The Customer agrees to:

• Maintain the confidentiality of any login credentials or other authentication information required to access the Services.
• Implement appropriate security measures on its own systems and devices to protect Personal Data and prevent unauthorized access.

 

3.3 Security Updates

Benchmark Email will implement procedures for updating and improving its security measures. These updates may include enhancements to technology, systems, or processes aimed at strengthening the security of Personal Data. Benchmark Email will notify the Customer if any critical security updates or patches are applied that may impact the Customer’s use of the Services.

 

3.4 Security Incident Response

In the event of a Personal Data Breach, Benchmark Email will promptly notify the Customer and cooperate with the Customer in managing the breach, including providing relevant information to assist with any required notification to Data Subjects or regulators, where applicable. Benchmark Email will follow its internal incident response procedures to mitigate any harm caused by the breach and to prevent future incidents.

 

4. Sub-processors

 

Benchmark Email may engage Sub-processors to carry out specific processing activities on behalf of the Customer. Sub-processors are third-party service providers who assist Benchmark Email in providing the Services and performing specific tasks related to the processing of Personal Data.

 

4.1 Use of Sub-processors

Benchmark Email may engage Sub-processors to assist in processing Personal Data in connection with the Services provided to the Customer, provided that Benchmark Email ensures that the Sub-processors comply with the same data protection obligations set out in this DPA.

 

4.2 Approval of Sub-processors

The Customer agrees that Benchmark Email may engage Sub-processors to assist in processing Personal Data in connection with the Services. Benchmark Email will maintain an up-to-date list of Sub-processors as described in Annex 3: Sub-processors List. Benchmark Email will notify the Customer of any new Sub-processors or changes to the list, in accordance with the maximum time allowed under GDPR.

 

The Customer has the right to object to the engagement of any new Sub-processor if there are legitimate data protection concerns. The Customer must submit any objections in writing to Benchmark Email. If the Customer objects, Benchmark Email will work with the Customer to address the concerns, which may include finding an alternative Sub-processor or taking other reasonable steps to resolve the issue.

 

4.3 Sub-processor Obligations

Benchmark Email will ensure that any engaged Sub-processor is contractually bound by terms that provide an equivalent level of data protection and security obligations as those set out in this DPA. This includes obligations regarding the confidentiality, security, and proper handling of Personal Data.

 

4.4 Liability for Sub-processors

Benchmark Email is responsible for the actions and omissions of its Sub-processors undertaken in connection with its performance of this DPA to the same extent it would be liable if performing the Services directly. In the event of a Sub-processor’s non-compliance with data protection obligations, Benchmark Email will take reasonable steps to remedy the situation and mitigate any potential harm to the Customer.

 

5. Data Subject Rights

 

Benchmark Email will assist the Customer (the Data Controller) in fulfilling its obligations under GDPR with respect to Data Subject Rights.

 

The Customer remains responsible for responding to Data Subject requests, and Benchmark Email will assist in the following ways:

 

• As part of the Service, Benchmark Email provides Customer with a number of features that Customer may use to retrieve, correct, delete, or restrict the use of Personal Data, which Customer may use to assist it in connection with its obligations under the Data Protection Laws with respect to responding to requests from Data Subjects.
• Right of Access: Benchmark Email will assist the Customer in providing Data Subjects access to their Personal Data upon request.
• Right to Rectification: Benchmark Email will help the Customer update or correct inaccurate or incomplete Personal Data.
• Right to Erasure: Benchmark Email will assist the Customer in fulfilling a Data Subject’s request to erase their Personal Data, where applicable under GDPR.
• Right to Restriction of Processing: Benchmark Email will assist the Customer if a Data Subject requests to restrict the processing of their Personal Data.
• Right to Data Portability: Benchmark Email will provide Personal Data in a structured, machine-readable format, as requested by the Customer, in line with the Data Subject’s right to data portability.
• Right to Object: Benchmark Email will help the Customer respond to any Data Subject’s objection to the processing of their Personal Data.

 

Benchmark Email will promptly notify the Customer of any requests received directly from Data Subjects, unless it is legally prohibited from doing so, and will assist in handling these requests as per the Customer’s instructions.

 

Benchmark Email will also ensure that reasonable security measures are in place when processing and responding to Data Subject Rights requests.

 

6. Data Breach Notification

 

In the event of a Personal Data Breach, Benchmark Email will promptly notify the Customer without undue delay, and no later than 72 hours after becoming aware of the breach, as required by GDPR. The notification will include the following information, where available:

 

• A description of the nature of the Personal Data Breach, including the categories of Personal Data affected and the approximate number of Data Subjects and Personal Data records involved.
• The likely consequences of the Personal Data Breach.
• A description of the measures taken or proposed to be taken by Benchmark Email to address the Personal Data Breach, including measures to mitigate its possible adverse effects.

 

If Benchmark Email has not provided all the necessary information within 72 hours, it will provide an explanation for the delay.

 

Benchmark Email will cooperate with the Customer in managing the breach, including providing reasonable assistance with any necessary notifications to Data Subjects and relevant supervisory authorities, in accordance with GDPR. Benchmark Email will also assist the Customer with providing any required documentation related to the breach.

 

The notification and assistance will be provided in a manner that allows the Customer to fulfill their obligations under GDPR, including meeting the timelines for breach notification.

 

7. International Transfers

 

Benchmark Email may process Personal Data anywhere in the world, including in countries outside the European Economic Area (EEA), where the level of data protection may not be equivalent to that provided in the EEA. In all cases, Benchmark Email will ensure that appropriate safeguards are in place to protect Personal Data in compliance with GDPR and other applicable data protection laws.

 

7.1 Adequacy Decisions

If Benchmark Email transfers Personal Data to a country recognized by the European Commission or relevant authorities as providing an adequate level of protection for Personal Data, no additional safeguards are required. The list of such countries can be found on the European Commission’s website.

 

7.2 Standard Contractual Clauses (SCCs)

Where applicable, Benchmark Email will use Standard Contractual Clauses (SCCs) approved by the European Commission to facilitate compliant transfers of Personal Data to countries outside the EEA. For details, please refer to Annex 4: Standard Contractual Clauses.

 

7.3 UK Data Transfers

With respect to transfers to which the UK Data Protection Laws apply, the SCCs shall, where applicable, apply and shall be deemed amended as specified by the UK Addendum. The UK Addendum shall be deemed executed by the parties and incorporated into and form an integral part of this DPA. In addition, the relevant tables in the UK Addendum shall be deemed completed with the information set out in Annexes I and II of the relevant SCCs.

 

7.4 Swiss Data Transfers

With respect to transfers to which the Swiss Data Protection Laws apply, the SCCs shall, where applicable, apply with the following modifications:

• References to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss Data Protection Act.
• References to specific Articles of “Regulation (EU) 2016/679” shall be replaced with the equivalent article or section of the Swiss DPA.
• References to “EU”, “Union”, and “Member State law” shall be replaced with “Switzerland”.
• Other modifications may apply as required by Swiss law.

 

7.5 Additional Safeguards

Where Benchmark Email processes Personal Data in a jurisdiction not covered by an adequacy decision or SCCs, additional safeguards may be implemented, such as Binding Corporate Rules (BCRs), approved codes of conduct, or certifications to ensure Personal Data remains protected in compliance with GDPR.

 

7.6 Data Transfers to Sub-processors

If Benchmark Email engages Sub-processors located outside the EEA, Benchmark Email will ensure that the Sub-processors are subject to the same level of safeguards for international data transfers, including the use of SCCs or other recognized transfer mechanisms.

8. Data Retention and Deletion

 

Benchmark Email will retain Personal Data only for as long as necessary to fulfill the purposes for which it was collected, in accordance with the terms of this DPA, the Customer’s instructions, and applicable laws.

 

8.1 Retention Period

Benchmark Email will retain Personal Data for the duration of the contract with the Customer, unless a longer retention period is required or permitted by applicable law. After the retention period, Benchmark Email will delete or anonymize Personal Data in accordance with its internal data retention policies.

 

8.2 Deletion or Return Upon Termination

Upon termination or expiration of the Terms, Benchmark Email will take reasonable measures to provide tools for the Customer (at the Customer’s election) to delete or return all Customer Data in Benchmark Email’s possession or control. This obligation does not apply to the extent Benchmark Email is required by applicable law or industry rules to retain some or all of the Customer Data, or to Customer Data archived on backup systems. In such cases, Benchmark Email will securely isolate the Customer Data, protect it from any further processing, and eventually delete it in accordance with Benchmark Email’s deletion policies, except as required by applicable law.

 

8.3 Ongoing Data Retention for Legal Obligations

Where Benchmark Email is required by applicable law to retain certain Personal Data beyond the term of the Agreement, Benchmark Email will ensure that such data is retained only for as long as necessary to fulfill legal obligations.

 

8.4 Deletion Process

Once the Personal Data is deleted, Benchmark Email will take reasonable steps to ensure that the data is securely erased and cannot be recovered, except where required to retain the data for legal, regulatory, or business purposes.

 

9. Amendments and Updates

 

Benchmark Email may update or amend this DPA from time to time to reflect changes in data protection laws, regulatory requirements, or the services offered. Any such changes will be communicated to the Customer.

 

9.1 Notification of Changes

Benchmark Email will provide reasonable notice to the Customer of any material changes to this DPA. The notice may be provided by email, through the Customer’s account, or by other reasonable means, depending on the nature of the change. The Customer will be deemed to have accepted the updated DPA by continuing to use Benchmark Email’s Services after the effective date of the update.

 

9.2 Amendments

If a change is required due to legal or regulatory reasons, Benchmark Email may update this DPA without prior notice to the Customer, provided that the Customer is notified as soon as reasonably possible.

 

9.3 Governing Law and Jurisdiction

Any amendments made to this DPA will be governed by the same terms, including the governing law and jurisdiction provisions specified in the main Terms of Use between Benchmark Email and the Customer.

 

10. Liability

 

10.1 Liability

Each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA (including the SCCs) shall be subject to the exclusions and limitations of liability set forth in the Terms of Use between Benchmark Email and the Customer.

 

10.2 Claim Exclusivity

Any claims made against Benchmark Email or its affiliates under or in connection with this DPA (including, where applicable, the SCCs) shall be brought solely by the Customer entity that is a party to the Agreement, unless otherwise required by applicable law.

 

10.3 Data Protection Rights

In no event shall either party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise, to the extent required by GDPR or applicable data protection law.

 

11. Relationship with the Terms

 

This DPA forms an integral part of the Terms of Use between Benchmark Email and the Customer. In the event of any conflict between the provisions of this DPA and the Terms of Use, the provisions of this DPA shall take precedence with respect to Personal Data processing.

 

11.1 Term and Termination

This DPA shall remain in effect for as long as Benchmark Email processes Customer Data on behalf of the Customer, or until termination of the Terms between Benchmark Email and the Customer (and all Customer Data has been returned or deleted in accordance with Section 8.2 above).

 

11.2 Governing Law

This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Terms, unless required otherwise by applicable Data Protection Laws.

 

11.3 Current Version

The parties agree that this DPA shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service.

 

12. Miscellaneous

 

12.1 Force Majeure

Benchmark Email shall not be liable for any failure or delay in performance under this DPA due to circumstances beyond its reasonable control, including but not limited to natural disasters, war, terrorism, government actions, power failures, or other events of force majeure. For further details, refer to the Force Majeure provision in the Terms of Use.

 

12.2 Severability

If any provision of this DPA is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect.

 

12.3 Entire Agreement

This DPA, together with the Terms of Use and any other agreements incorporated by reference, constitutes the entire agreement between the parties with respect to the processing of Personal Data. Any prior agreements, understandings, or representations related to the subject matter of this DPA are superseded and replaced by this DPA. For further details, refer to the Entire Agreement provision in the Terms of Use.

 

12.4 Waiver

Our failure to enforce any right or provision of this DPA does not constitute a waiver of that right or provision. Any waiver must be in writing to be effective.

 

12.5 Dispute Resolution

Any disputes arising from or in connection with this DPA shall be resolved in accordance with the dispute resolution provisions specified in the Terms of Use.

 

12.6 Assignment

You may not assign or transfer these Terms or your rights under them without prior written consent from Benchmark Email. We may assign or transfer these Terms without restriction, including in the event of a merger, acquisition, or sale of assets.

 

12.7 Language

This DPA is written in English, and any translations provided are for convenience. In case of any discrepancies between the English version and a translated version, the English version shall prevail.

 

12.8 No Third-Party Beneficiaries

This DPA is intended for the benefit of the parties to the agreement and is not intended to confer any rights or benefits on any third party, except as otherwise stated herein.

 

Annex 1: Details of Data Processing

 

1. Purpose of Data Processing

The purpose of processing Personal Data is to provision the Services as described in the Terms of Use.

 

2. Nature of the Processing

Benchmark Email provides email marketing and automation software as a service and other related services, as described in the Terms of Use. The subject matter of the data processing under this DPA is the Customer Data. Customer Data will be processed in accordance with the Terms of Use (including this DPA).

 

3. Data Categories

The following categories of Personal Data may be processed:

• Contact information: Name, email address, phone number, and any other information that Customer provides to Benchmark Email.;
• Customer billing information: billing address, credit card details, other payment information;
• Customer preferences: Email subscription status, marketing preferences, etc.;
• Behavioral data: IP address, navigation data, browser data, cookie data, interaction with emails, click-through rates, etc.

 

4. Data Subjects

The data subjects whose Personal Data is processed include:

• Customers who use the Services;
• Subscribers, customers, and potential customers of the Customer;
• Individuals who interact with the Customer’s email campaigns, including visitors to their website or recipients of marketing emails.

 

5. Processing Activities

The following processing activities will be performed on Personal Data:

• Data collection via forms, email campaigns, and integrations;
• Data storage, including retention of contact and interaction information;
• Data analysis for reporting and campaign optimization;
• Transmission of Customer Data for marketing purposes (e.g., sending emails).

 

6. Data Retention

Benchmark Email will Process Customer Data for the duration of the Services, as described in the Terms of Use. The retention of Personal Data will be handled according to Benchmark Email’s Data Retention policy as described in Section 8 of this DPA.

 

7. Data Transfers

Any data transfers, particularly cross-border data transfers, will be covered under the provisions of Section 7. International Transfers or Annex 4: Standard Contractual Clauses (SCCs).

 

8. Sub-processors

The list of Sub-processors engaged by Benchmark Email for data processing activities is detailed in Annex 3: Sub-processors List.

 

Annex 2: Security Measures

 

The Security Measures applicable to the Service are described herein.

 

1. Organizational Security Measures

• Data Protection Officer (DPO): Benchmark Email has designated a Data Protection Officer to oversee compliance with GDPR and other data protection regulations.
• Employee Training: All employees involved in processing Personal Data undergo regular training on data protection principles, including confidentiality, integrity, and security.
• Access Control: Access to Personal Data is restricted to authorized personnel based on their roles. All access is logged and monitored to ensure accountability.

 

2. Technical Security Measures

• Encryption: Personal Data is encrypted both in transit and at rest using industry-standard encryption protocols (e.g., SSL/TLS for data in transit and AES for data at rest).
• Data Integrity: We implement measures to ensure the integrity of Personal Data, including checksums and hash functions to verify the accuracy of data during transmission and storage.
• Change Control: Benchmark Email maintains policies and procedures for applying changes to the Services, including underlying infrastructure and system components, to ensure quality standards are being met.
• Data Anonymization: Where applicable, Benchmark Email uses anonymization techniques to ensure that sensitive personal data is not unnecessarily exposed.

 

3. Incident Response

• Security Breach Management: Benchmark Email has established procedures for detecting, reporting, and managing security breaches. In the event of a data breach, we will promptly notify the Customer in accordance with the Data Breach Notification section of the DPA.
• Incident Logs: All security incidents are logged, and the logs are regularly reviewed to ensure that any potential threats are identified and addressed.

 

4. System Availability

• Redundancy and Backup: Benchmark Email employs redundancy measures, including geographically distributed data centers and backup systems, to ensure that Customer Data remains available in the event of a failure.
• Disaster Recovery: We maintain a disaster recovery plan that is regularly tested to ensure minimal disruption to services and data processing in the event of a significant outage or disaster.

 

5. Continuous Monitoring and Improvement

• Vulnerability Management: Benchmark Email conducts regular vulnerability assessments and penetration testing to identify and resolve potential security weaknesses.
• Security Audits: Independent audits of our security measures are conducted on a regular basis to ensure compliance with industry best practices and GDPR.

 

Annex 3: Sub-processors List

 

1. List of Sub-processors

Benchmark Email uses the following Sub-Processors to help provide its services:

 

Sub-Processor	Location	Use
Amazon AWS	USA, Japan	Hosting, data storage, analytics
Auth0	USA	Customer authentication and authorization
BenchmarkONE	USA	CRM and customer communication via email
CD Networks	USA	Network connectivity
Cloudflare	Global	Content distribution, security, abuse prevention and DNS services
Command	USA	Customer in-app communication
DNS Made Easy	USA	DNS services
FullStory	USA	Product usage analytics
Google	USA	Data storage, website analytics
HelpScout	USA	Customer support tickets and customer communication via chat and email
Intercom	USA	Customer communication via in-app and email
Kickbox	USA	Email verification
LiveChat	USA	Customer communication via chat
OpenAI	USA	AI-enabled features
Slack	USA	Internal communication and collaboration
Zendesk	USA	Customer support tickets and email communication

 

2. Updates to Sub-processors

Benchmark Email will update this list as needed. Customers will be notified of any new sub-processors or changes to this list in accordance with the terms specified in Section 4: Sub-processors of the DPA.

 

Annex 4: Standard Contractual Clauses (SCCs)

SECTION I

Clause 1 - Purpose and Scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.

 

(b) The Parties:(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

 

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

 

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

 

Clause 2 - Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

 

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

 

Clause 3 - Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

 

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

 

(ii) Clause 8 – Clause 8.1(b), 8.9(a), (c), (d) and (e);

 

(iii) Clause 9 – Clause 9(a), (c), (d) and (e);

 

(iv) Clause 12 – Clause 12(a), (d) and (f);

 

(v) Clause 13;

 

(vi) Clause 15.1(c), (d) and (e);

 

(vii) Clause 16(e);

 

(viii) Clause 18 – Clause 18(a) and (b).

 

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

 

Clause 4 - Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

 

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

 

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

 

Clause 5 - Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

 

Clause 6 - Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

 

Clause 7 - Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

 

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

 

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

 

SECTION II - OBLIGATIONS OF THE PARTIES

 

Clause 8 - Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

 

8.1 Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

 

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

 

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

 

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

 

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

 

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

 

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

 

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

 

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

 

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

 

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

 

8.8. Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

 

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

 

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

 

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

 

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

 

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

 

Clause 9 - Use of sub-processors

(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

 

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

 

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

 

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

 

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

 

Clause 10 - Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

 

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

 

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

 

Clause 11 - Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

 

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

 

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

 

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

 

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

 

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

 

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

 

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

 

Clause 12 - Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

 

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

 

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

 

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

 

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

 

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

 

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

 

Clause 13 - Supervision

(a) The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

 

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

 

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

 

Clause 14 - Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

 

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

 

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

 

(ii) the laws and practices of the third country of destination – including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

 

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

 

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

 

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

 

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

 

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

 

Clause 15 - Obligations of the data importer in case of access by public authorities

15.1 Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

 

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

 

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

 

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

 

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

 

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

 

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

 

15.2 Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

 

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

 

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

 

SECTION IV - FINAL PROVISIONS

 

Clause 16 - Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

 

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

 

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

 

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

 

(ii) the data importer is in substantial or persistent breach of these Clauses; or

 

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

 

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

 

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

 

Clause 17 - Governing law

These Clauses shall be governed by the law of the jurisdiction specified in Section 11.2 of the DPA and the Benchmark Email Terms of Use, unless required otherwise by applicable Data Protection Laws.

 

Clause 18 - Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of the jurisdiction specified in Section 11.2 of the DPA and the Benchmark Email Terms of Use. (b) The Parties agree that those shall be the courts of the jurisdiction specified in Section 11.2 of the DPA and the Benchmark Email Terms of Use. (c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

 

APPENDIX to the Standard Contractual Clauses

 

ANNEX I

 

1. LIST OF PARTIES

 

Data exporter(s): 

 

1. Customer, as those terms are defined in the Benchmark Email’s Terms of Use to which the Data Processing Addendum is attached.

 

Data importer(s): 

 

1. Name: Polaris Software, Inc.

 

Address: 3636 S. Geyer Road, Suite 100, St Louis, MO 63127 USA.

 

Contact person’s name, position and contact details: support@benchmarkemail.com

 

Activities relevant to the data transferred under these Clauses: email marketing services

 

Signature and date: The Standard Contractual Clauses shall enter into force on the date the Customer agrees to the Benchmark Email Terms of Use and the Data Processing Addendum (DPA). If the Customer becomes a client of Benchmark Email after the execution of this DPA, the SCCs shall be deemed effective on the day the Customer agrees to the Terms of Use and DPA.

 

Role (controller/processor): processor

 

1.   DESCRIPTION OF TRANSFER

 

Categories of data subjects whose personal data is transferred: Customer determines and controls the extent of Customer Personal Data submitted for Processing by the Services, which may include Personal Data relating to: (1) Users - any individual accessing and/or using the Services through the Customer's account; (2) Subscribers - any individual whose email address is included in the Customer's distribution list / whose information is stored on or collected via the Services / to whom Users send emails or otherwise engage or communicate with via the Services.

 

Categories of personal data transferred: The personal data transferred concern the following categories of data: (1) Users: identification and contact data (name, contact details, including email address, username); billing information (billing address, payment information); organization information (name, address, geographic location, area of responsibility, VAT code), IT information (IP address, usage data, cookies data, online navigation data, location data, browser data, access device information); (2) Subscribers: email address and any other additional information that Customer provides to Benchmark Email.

 

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: No sensitive data shall be transferred to Benchmark Email.

 

The frequency of the transfer: Data is transferred on a continuous basis for the duration of the Services, as described in the Terms of Use.

 

Nature of the processing: Benchmark Email is a service that provides customers with a means to collect email addresses and to create, send and track email promotions (“Services”) and other services pursuant to any order confirmations, ordering documents or online registration, as described in the Terms of Use.

 

Purpose(s) of the data transfer and further processing: The purpose of the data Processing under this DPA is the provision of the Services.

 

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: Data will be retained for the duration of Services. It shall not apply to the extent Benchmark Email is required by the applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems where Customer Data is securely isolated and protected from any further processing, except to the extent required by applicable law.

 

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: Personal Data might be transferred to Benchmark Email’s sub-processors in order to provide its customers with the Services. Sub-processing should take place for the duration of the provision of Services or longer, if required by law.

 

1.   COMPETENT SUPERVISORY AUTHORITY

 

Identify the competent supervisory authority/ies in accordance with Clause 13:

 

The competent supervisory authority for ensuring compliance with Regulation (EU) 2016/679 (GDPR) with respect to the transfer of Customer Data is the Data Protection Authority (DPA) in the Customer’s jurisdiction. The relevant authority will be determined by the location of the Customer (the Data Exporter), as listed in the EDPB’s directory of supervisory authorities (available at: EDPB Supervisory Authorities).

 

For Customers located in the European Union (EU) or the European Economic Area (EEA), the Data Protection Authority in the Customer’s country will be the competent authority. For Customers located in the United Kingdom (UK), the Information Commissioner’s Office (ICO) is the competent authority. For Customers located in Switzerland, the Federal Data Protection and Information Commissioner (FDPIC) is the relevant authority.

 

In case of cross-border data processing, the European Data Protection Board (EDPB) may be involved in resolving disputes, particularly under the one-stop-shop mechanism as defined in GDPR.

 

ANNEX II

 

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Please see Annex 2 of DPA – Security Measures.

 

ANNEX III

 

LIST OF SUB-PROCESSORS

Please see Annex 3 of DPA – Sub-Processors List.

 

Last updated on March 1, 2026