MARTINIZING INTERNATIONAL, LLC WEBSITE TERMS AND CONDITIONS
THIS IS A LEGAL CONTRACT BETWEEN YOU AND MARTINIZING INTERNATIONAL, LLC (“Martinizing”, “we”, “us” or “our”). PLEASE REVIEW THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING OR VISITING THIS SITE. By using or visiting our site (“Site”) or any MARTINIZING websites, products, software, data feeds, information and services provided to you on, from, or through our Site (collectively, the “Service”) you signify your agreement to (i) these terms and conditions, including the Data Processing Addendum (“DPA”) (as amended, modified or restated from time to time, the “Terms and Conditions”), and (ii) and any other legal notices published by MARTINIZING on the Service (“Legal Notices”). If you do not agree to any of these Terms and Conditions or the Legal Notices, then please do not use our Site or the Service.
Although MARTINIZING may attempt to notify you when major changes are made to these Terms and Conditions, you should periodically review the most current version, available at http://www.Martinizing.com/Terms-Conditions.php. MARTINIZING may, in its sole discretion, modify or revise these Terms and Conditions, Legal Notice and other policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms and Conditions shall be deemed to confer any third party rights or benefits other than as contained within the DPA
These Terms and Conditions apply to all users of the Service, including users, if any, who are also contributors of Content for the Service. “Content” means and includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials or information you may view on, access through, or contribute to the Service from time to time. The Service includes all aspects of MARTINIZING, including without limitation all products, software and services offered via the Site, functionality offered by the Service and other applications available on the Site from time to time.
2. Links to and from Other Websites
3. MARTINIZING Account
In order to access some features of the Service from time to time, you may be required to create a MARTINIZING account. You may never use another user’s account without their express permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify MARTINIZING immediately of any breach of security or unauthorized use of your account. Although MARTINIZING will not be liable for any losses caused by any unauthorized use of your account, you may be liable for any losses encountered by MARTINIZING or others due to such unauthorized use. Use of the MARTINIZING account by residents of the EU is further governed by the DPA.
4. License and Conditions
MARTINIZING hereby grants you a limited license to access and use the Service as set forth in these Terms and Conditions, provided that:
- You agree not to alter or modify any part of the Service.
- You agree not to distribute or store in any medium any part of the Service or the Content without MARTINIZING’s prior written consent, unless MARTINIZING makes available the means for such distribution through a functionality offered by the Service.
- You agree not to access Content through any technology or means other than the pages of the Service itself, or other explicitly authorized means MARTINIZING may designate from time to time.
- You agree not to resell or make any commercial use of the Service, including without limitation, using the Service in conjunction with the sale of access to the Service or the sale of advertising, sponsorships, or promotions placed on or within the Service or Content.
- You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit the Service for any commercial purpose without MARTINIZING’s prior written consent.
- You agree not to make any derivative use of the Service.
- You agree not to frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of MARTINIZING and its affiliates without MARTINIZING’s prior written consent.
- You agree not to use any meta tags or any other “hidden text” utilizing the MARTINIZING name or trademarks without MARTINIZING’s prior written consent.
- You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
- In your use of the Service, you will comply with all applicable laws.
- You agree that MARTINIZING reserves the right, at any time and for any reason, to modify, suspend or terminate the Service (or any part thereof) as described further below.
- If you use any MARTINIZING embeddable player on your website, you may not modify, build upon, or block any portion or functionality of the embeddable player, including but not limited to links back to the MARTINIZING Site.
- If you use any MARTINIZING uploader, you agree that it may automatically download and install updates from time to time from MARTINIZING. Theseupdates are designed to improve, enhance and further develop the uploader and may take the form of bug fixes, enhanced functions, new software modules and/or completely new versions. You agree to receive such updates (and permit MARTINIZING to deliver these to you) as part of your use of the uploader.
- You agree not to use or launch any automated system, including without limitation “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to the MARTINIZING servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. Notwithstanding the foregoing, MARTINIZING grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of, and solely to the extent necessary for, creating publicly-available searchable indices of the materials, but not caches or archives of such materials. MARTINIZING reserves the right to revoke these exceptions either generally or in specific cases.
5. Use of Content
In addition to the general conditions described above, the following restrictions and conditions apply specifically to your use of Content.
- The Content on the Service, including all trademarks, service marks and logos on the Service, are owned by or licensed to MARTINIZING, subject to copyright and other intellectual property rights under the law.
- Content is provided to you “AS IS”. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms and Conditions. You shall not download any Content unless you see a “download” or similar link displayed by MARTINIZING on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of MARTINIZING or the respective licensors of the Content. MARTINIZING and its licensors reserve all rights not expressly granted in and to the Service and the Content.
- You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or any features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
- You understand that when using the Service, you will be exposed to Content from a variety of sources, and that MARTINIZING is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against MARTINIZING with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless MARTINIZING, its members, officers, employees, representatives, agents, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
6. Your Content and Conduct
- As an account holder you may have an opportunity to submit Content to the Service, including without limitation text, graphics, photos, music, videos and other materials or information. You understand that MARTINIZING does not guarantee any confidentiality with respect to any Content you submit, other than as outlined in the DPA as applicable to EU residents.
- You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit on the Site; and you license to MARTINIZING all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms and Conditions.
- For clarity, except as otherwise provided herein, you retain all of your ownership rights in your Content. However, by submitting Content to MARTINIZING on the Site, you hereby grant MARTINIZING a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, edit, telecast, rerun, reproduce, distribute, print, prepare derivative works of, display, and/or perform the Content (or any part thereof) in connection with the Service and MARTINIZING’s (and/or its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) or for any commercial and non-commercial advertising, marketing and/or product development efforts regarding MARTINIZING’s products, without restriction in any media formats and through any media channels in perpetuity without liability to you. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms and Conditions. The above licenses granted by you in Content you submit to the Site are perpetual and irrevocable.
- You are prohibited from submitting to or from the Service any Content that is: threatening, defamatory, obscene, pornographic, abusive, liable to incite racial hatred, discriminatory, inflammatory, in breach of confidence or in breach of privacy; excessive in length; constitutes or encourages conduct that would be considered a criminal offense, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or, except as otherwise provided herein, is technically harmful (including without limitation by hacking, using robots, spiders, data mining or similar data gathering tools, and automated submission of data).
- You further agree that Content you submit to the Service will not contain any third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant MARTINIZING all of the license rights granted herein.
- MARTINIZING does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and MARTINIZING expressly disclaims any and all liability in connection with Content. MARTINIZING does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and MARTINIZING will remove all Content if properly notified that such Content infringes on another’s intellectual property rights. MARTINIZING reserves the right to remove Content without prior notice.
7. Modification, Suspension or Termination Policy
MARTINIZING reserves the right, for any reason, at any time and from time to time, temporarily or permanently, in whole or in part, to: with or without notice, modify, suspend or terminate the Service or your account, or remove any Content, service, software, submission, feature or product offered through the Site; limit the Service’s availability to any person, geographic area or jurisdiction we choose; charge fees in connection with the use of the Service; modify and/or waive any fees charged in connection with the Service; and/or offer opportunities to some or all users of the Service (collectively, the “Service Policy”). In connection with its Service Policy, MARTINIZING also reserves the right to decide whether Content violates these Terms and Conditions for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. You acknowledge and agree that neither MARTINIZING, nor any of its affiliated entities, shall be liable to you or to any third party for any such action, in whole or in part, in furtherance of MARTINIZING’s Service Policy. In addition, while MARTINIZING attempts to ensure that the Service is normally available twenty-four hours a day, MARTINIZING shall not be liable to you or any third party if for any reason the Service is unavailable at any time or for any period. Your continued use of the Service after any such changes described herein will indicate your acceptance of such changes.
8. Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyright(s), you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate such material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
MARTINIZING’s designated Copyright Agent to receive notifications of claimed infringement is Jessica McGrath, Esq., Vice-President and General Counsel, 2060 Coolidge Hwy., Berkley, MI 48072. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to MARTINIZING customer service at support@Martinizing.com. You acknowledge that if you fail to comply with all of the requirements of this Section 8, your DMCA notice may not be valid.
If you believe that your Content that was removed (or to which access was disabled) is not infringing any copyright(s), or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the Content that has been removed or to which access has been disabled and the location where the Content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the United States District Court for the Eastern District of Michigan, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, MARTINIZING may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in ten business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in approximately ten to fourteen business days (or more, if necessary) after receipt of the counter-notice, at MARTINIZING’s sole discretion.
9. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, MARTINIZING, ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. MARTINIZING MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. MARTINIZING DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MARTINIZING WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
10. Limitation of Liability
IN NO EVENT SHALL MARTINIZING, ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT MARTINIZING SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service is controlled and offered by MARTINIZING from its facilities in the United States of America. MARTINIZING makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law, subject to the terms of the DPA.
To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless MARTINIZING, its members, managers, officers, employees, attorneys, representatives and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising out of or in any manner incident, relating or attributable to: (i) your use of and access to the Service; (ii) your violation of any term of these Terms and Conditions or any Legal Notices; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms and Conditions and your use of the Service.
12. Ability to Accept Terms and Conditions
You affirm that you are either more than 18 years of age, an emancipated minor, or possess legal, parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions, and to abide by and comply with these Terms and Conditions. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use our Site or the Service.
These Terms and Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by MARTINIZING without restriction.
You acknowledge and agree that: (i) the Service shall be deemed solely based in the State of Michigan; and (ii) the Service shall be deemed a passive Site that does not give rise to personal jurisdiction over MARTINIZING, either specific or general, in jurisdictions other than the State of Michigan. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Michigan, without respect to any conflicts of law principles. Any claim or dispute between you and MARTINIZING that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Oakland County, Michigan or in the United States District Court for the Eastern District of Michigan. These Terms and Conditions and any other Legal Notices published by MARTINIZING on the Service, shall constitute the entire agreement between you and MARTINIZING concerning the Service. If any provision of these Terms and Conditions is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect. No waiver of any term of these Terms and Conditions shall be deemed a further or continuing waiver of such term or any other term, and MARTINIZING’s failure to assert any right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision. MARTINIZING reserves the right to amend these Terms and Conditions at any time and without notice, and it is your responsibility to review these Terms and Conditions for any changes. Your use of the Service following any amendment of these Terms and Conditions will signify your assent to and acceptance of its revised terms. YOU AND MARTINIZING AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
DATA PROCESSING ADDENDUM
TO TERMS AND CONDITIONS
This Data Processing Addendum (“DPA”) is an addendum to the Terms and Conditions governing the use of MARTINIZING’s website and also applies to any transfer of information to MARTINIZING from an outside entity pursuant to an agreement or other contractual obligation. By accessing the website, mobile applications, materials, programming, products or anything else of use or value on the website constitutes your agreement and acceptance of this Addendum.
This DPA includes:
- Exhibit 1- Standard Contractual Clauses - including Appendix 1 providing details on the processing of Personal Data by MARTINIZING and Appendix 2 providing details on the security measures employed by MARTINIZING; and
- Exhibit 2 – List of Sub-Processors.
Definitions are found at Exhibit 1, Clause 1 are applicable to this DPA. In addition, the following definitions are applicable to this DPA:
- GDPR – Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Processing of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ED (General Data Processing Regulation)
- Bulk Transfer – Any transfer of personal data regarding data subjects pursuant to an agreement between MARTINIZING and the controller of the personal data. In such an instance, the Bulk Transferee is the Controller of the personal data.
- Individual Transfer – Any person who enters information into the MARTINIZING website .
- Products or Services – Any and all services or products provided by MARTINIZING and accessed through the MARTINIZING website.
- Principal Agreement – Any agreement pursuant to which an Individual Purchaser obtains access to MARTINIZING Products or Services or a Bulk Transfer takes place.
B. Processing Details:
- Identification of Data Subjects: Data Subjects include any person accessing Products or Services as an Individual Purchaser.
- Nature of Personal Data: Data Subjects using the “contact us” form provide contact information including name, telephone number and email address. In addition, in connection with insurance claims submissions, information regarding Data Subjects may be provided by Data Subjects or other representatives of Data Subjects and may include contact information for the Data Subject including name, address and telephone number, contact information for the Data Subjects insurance company, contact with contractor servicing the Data Subject and information regarding the nature of the services required by the Data Subject.
- Purpose of Processing: Personal Data is processed by MARTINIZING for the purpose of providing Products and Services to individual purchasers consistent with MARTINIZING’s agreement with them or to transferees of bulk transfers consistent with MARTINIZING’s agreement with the bulk transferee.
- Duration of Processing: Personal Data will be processed for the length of the contractual relationship with individual purchasers or bulk transferees, subject to retention for statistical and other purposes permitted by the GDPR.
- Transfer of Personal Data: Controller agrees that in the performance of the Principal Agreement, Personal Data will be transferred to MARTINIZING located in the United States. MARTINIZING has undertaken such steps as are necessary to ensure adequate Processing under the GDPR for such transfers and will ensure than any transfers of Personal Data to a Sub-Processor satisfies such requirements.
C. Processor Duties:
- As processor of the Personal Data, MARTINIZING shall collect and process the Personal Data only in compliance with the performance of the contract between Controller, as reflected in Appendix 1 to this DPA. MARTINIZING undertakes to ensure that any personnel with access to Personal Data is subject to compliance with confidentiality obligations consistent the GDPR.
- Processor will comply with all requirements of the GDPR in terms of deletion or removal of Personal Data at the request of the Data Subject or Controller. In addition, Processor will comply with all requests for removal or deletion of Personal Data after the termination of the Principal Agreement, if the Principal Agreement so requires.
D. Controller Duties:
Controller is responsible for ensuring compliance with any and all data Processing requirements regarding the disclosure and transfer of Personal Data to Processor. Any instruction by Controller to Processor shall comply with GDPR
Processor shall take all appropriate organizational and technological steps to ensure the security of Personal Data against accidental or unlawful disclosure, loss, dissemination, destruction or alteration of Personal Data, as reflected in Appendix 2 to this DPA.
F. Personal Data Breach:
In the event of any Data Breach affecting Personal Data, Processor shall provide Controller with sufficient information to allow each Data Subjects of the Personal Data Breach to satisfy any obligations under the GDPR. Processor shall co-operate with Controller and take such reasonable steps as are directed by Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Processor shall make available to Controller on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by any Controller or any auditor mandated by the Controller in relation to the processing of the Personal Data by Processor. Processor need not give access to its premises for the purposes of such an audit or inspection 1) to any individual unless he or she produces reasonable evidence of identity and authority and 2) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and the Controller undertaking an audit has given notice to Processor that this is the case before attendance outside those hours begins. Processor shall not be required to disclose information or Personal Data in violation of any prevailing law or other duty of confidentiality.
Processor and Controller agree that Processor shall be entitled to retain and use may continue to use those Sub-Processors already engaged by Processor as at the date of this DPA, as identified in Exhibit 2. Processor shall carry out adequate due diligence to ensure that the Sub-Processor is capable of providing the level of Processing for Personal Data required by the Principal Agreement. Processor shall have the right to engage any new or additional Sub-Processor and Processor shall give notice to Controller at email address on record with Processor. Controller shall have the right to object to the Sub-Processor but only on reasonable grounds related to Sub-Processor’s ability to provide adequate Processings for Personal Data. Processor and Controller may terminate any Principal Agreement if they are unable to agree on the appointment of the Sub-Processor without penalty under the Principal Agreement. Any Sub-Processor must comply with any and all obligations of the Processor and a failure to do so will render Processor to liability to Controller for such failure. Controller may engage in Audit of Sub-Processor under Section G and the GDPR including review of written agreements between Processor and Sub-Processor.
- Any and all other provisions of the MARTINIZING Terms and Conditions are incorporated into this DPA.
- In the instance of any conflict between provisions of the MARTINIZING Terms and Conditions and this DPA, the terms within this DPA shall prevail.
- In the instance of any conflict between provisions of any Principal Agreement and this DPA, the terms within this DPA shall prevail.
- In the instance of any conflict between provisions of this DPA and the Standard Contractual Clauses in Exhibit 1, the terms of the Standard Contractual Clauses shall prevail.
For the purposes of the Addendum and Clauses:
- '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 Processing of individuals with regard to the processing of personal data and on the free movement of such data; [If these Clauses are governed by a law which extends the Processing of data Processing laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of "personal data" is expanded to include those data” are added.
- 'the data exporter' means the controller who transfers the personal data;
- '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 Processing within the meaning of Article 25(1) of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words "and who is not subject to a third country's system ensuring adequate Processing within the meaning of Article 25(1) of Directive 95/46/EC" are deleted.
- 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- 'the applicable data Processing 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;
- 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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.
Third-party beneficiary clause
- 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.
- 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.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- 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.
Obligations of the data exporter
The data exporter agrees and warrants:
- 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 Processing 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;
- 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 Processing law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data Processing law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- 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 Processing within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words "within the meaning of Directive 95/46/EC" are deleted.]
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data Processing supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of Processing for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- 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;
- 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;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- 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,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- 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;
- 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;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- 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:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- 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.
Cooperation with supervisory authorities
- 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 Processing law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data Processing law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data Processing obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data Processing aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data Processing supervisory authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1
This Appendix forms part of the Standard Contractual Clauses.
The data that MARTINIZING collects from users is detailed in the Terms and Conditions and Data Processing Addendum. This data allows MARTINIZING to provide our services to the user; to communicate with the user about his or her requested services (including technical assistance and account reminders); and MARTINIZING may share this data with third parties (a list of which can be found in Exhibit 2 below) to assist MARTINIZING in providing requested services to the user.
MARTINIZING may transfer some user data in the ordinary course of its business as outlined in the Data Processing Addendum. Such transfers may include, but are not necessarily limited to, transfers of data for billing purposes and to provide MARTINIZING’s products and services as requested. Any data that is transferred is done so securely, using, at a minimum, industry “best practice” standards.
User data is retained and stored for as long as necessary to service the Data Subject. Identifying and non-identifying statistical usage data for users may be retained indefinitely. There is no requirement for users to submit their data to us, but if they choose not to submit their data, MARTINIZING’s ability to provide users with our services might be limited, or all together impossible.
In addition to using user data for the above purposes, MARTINIZING also uses “cookies” which are necessary for functionality of the website. These “cookies” do not store any personal data.
Users may withdraw their consent for MARTINIZING to use their data at any time by contacting MARTINIZING and stating that they wish to withdraw their consent to use their data.
This Appendix forms part of 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):
MARTINIZING currently observes the security practices described in this Appendix 2. Notwithstanding any provision to the contrary otherwise agreed to by data exporter, MARTINIZING may modify or update these practices at its discretion provided that such modification and update does not result in a material degradation in the Processing offered by these practices. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the DPA.
A) Access Control
Preventing Unauthorized Product Access
Outsourced processing: MARTINIZING hosts its Service with outsourced data centers and cloud infrastructure providers. Additionally, MARTINIZING maintains contractual relationships with vendors in order to provide the Service in accordance with our Data Processing Agreement. MARTINIZING relies on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.
Physical and environmental security: MARTINIZING hosts its processing infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for HIPAA, PCI-DSS, and SSAE-18 SOC 2 Type II/SOC 3 compliance.
Authentication: MARTINIZING implemented a uniform password policy for its partner products. Partners who interact with the products via the user interface must authenticate before accessing non-public customer data.
Authorization: Customer data is stored in multi-tenant storage systems accessible to Partners via only application user interfaces and application programming interfaces. Partners are not allowed direct access to the underlying application infrastructure. The authorization model in each of MARTINIZING’s services is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
Application Programming Interface (API) access: Product APIs may be accessed using an API key.
- Preventing Unauthorized Use
MARTINIZING implements industry standard access controls and detection capabilities for the internal networks that support its products.
Access controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.
Intrusion detection and prevention: MARTINIZING implemented a Web Application Firewall (WAF) solution to protect hosted customer data and other internet-accessible applications. The WAF is designed to identify and prevent attacks against publicly available network services.
Static code analysis: Security reviews of code stored in MARTINIZING’s source code repositories is performed, checking for coding best practices and identifiable software flaws.
Penetration testing: MARTINIZING maintains relationships with industry recognized penetration testing service providers for four annual penetration tests. The intent of the penetration tests is to identify and resolve foreseeable attack vectors and potential abuse scenarios.
- Limitations of Privilege & Authorization Requirements
Product access: A subset of MARTINIZING’s employees have access to the products and to customer data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective partner support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Employees are granted access by role, and reviews of high risk privilege grants are initiated daily. Employee roles are reviewed at least once every six months. All employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.
B) Transmission Controlc
In-transit: MARTINIZING makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces and for free on every customer and partner site hosted on the MARTINIZING products. MARTINIZING’s HTTPS implementation uses industry standard algorithms and certificates.
At-rest: MARTINIZING stores user passwords following policies that follow industry standard practices for security.
C) Input Control
Detection: MARTINIZING designed its infrastructure to log information about the system behavior, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. MARTINIZING personnel, including security, operations, and support personnel, are responsive to known incidents.
Response and tracking: MARTINIZING maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, MARTINIZING will take appropriate steps to minimize product and Customer damage or unauthorized disclosure.
Communication: If MARTINIZING becomes aware of unlawful access to Customer data stored within its products, MARTINIZING will: 1) notify the affected Partners of the incident; 2) provide a description of the steps MARTINIZING is taking to resolve the incident; and 3) provide status updates to the Customer contact, as MARTINIZING deems necessary. Notification(s) of incidents, if any, will be delivered to one or more of the Customer’s contacts in a form MARTINIZING selects, which may include via email or telephone.
D) Availability Control
Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.
Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over Processings during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones.
Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.
MARTINIZING’s products are designed to ensure redundancy. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists MARTINIZING operations in maintaining and updating the product applications and backend while limiting downtime.
Sub-Processors used by MARTINIZING:
- Microsoft, Corp.
- Twilio, Inc.
- Xactware Solutions, Inc.
- Verisk Analytics, Inc.
- Symbility Solutions Inc.
- Spot Business Systems, LLC
- ClickDimensions, LLC
- Constant Contact, Inc.
- The Rocket Science Group, LLC (MailChimp)
- Chatmeter, Inc.
- Price Waterhouse Coopers, LLP
- Amazon Web Services, Inc.
- Google, Inc.
- SendGrid, Inc.
Dated: June 22, 2018