MarketingCloudFX Terms and Conditions

• MarketingCloudFX Terms and Conditions
• Data Processing Agreement
• Cookie Statement

THESE TERMS AND CONDITIONS APPLY TO CUSTOMER’S (“Customer”) ACCESS AND USE OF WEBPAGEFX INC.’S (“WebpageFX”) MARKETINGCLOUDFX (“MarketingCloudFX”) APPLICATION AND SERVICES. PURSUANT TO THESE TERMS, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE MARKETINGCLOUDFX PLATFORM. THESE TERMS AND ANY ASSOCIATED ORDER FORMS OR CONTRACTS TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN WebpageFX AND CUSTOMER, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE AGREEMENT. CUSTOMER ACKNOWLEDGES THAT ALL INFORMATION PROVIDED BY CUSTOMER IS TRUE AND CORRECT. CUSTOMER AGREES THAT THE ACT OF UTILIZING WebpageFX’S MARKETINGCLOUDFX APPLICATION CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS ASSOCIATED WITH THE SERVICES PURCHASED AND THE ACT OF PAYMENT OR USAGE SHALL BE IN LIEU OF WRITTEN SIGNATURE.

Guidelines / Acceptable Use

WebpageFX grants Customer a non-exclusive, revocable, non-transferable, limited license to use the MarketingCloudFX Application in conjunction with marketing services provided by WebpageFX to Customer.

Customer shall not (i) modify, translate, or create derivative works based on the MarketingCloudFX Application; (ii) create any link to the MarketingCloudFX Application, frame, mirror, or proxy any content contained or accessible from the MarketingCloudFX Application; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the MarketingCloudFX Application; (iv) rent, lease, distribute, license, sub-licenses, sell, resell, assign, or otherwise commercially exploit the MarketingCloudFX Application, other than as provided herein; (v) access the MarketingCloudFX Application in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions, or graphics of the MarketingCloudFX Application; (vi) use or allow third parties to use the MarketingCloudFX application for digital display advertising, including onboarding data from the MarketingCloudFX Application to any data management platform or other platform or exchange; (vii) reference WebpageFX, the MarketingCloudFX application, or any of WebpageFX’s partners as the source of any data. Customer shall be responsible for the legality of data collection from Customer’s website visitors using the MarketingCloudFX Application. Customer is responsible for complying with all laws and providing proper notification to Customer’s website visitors regarding the use of MarketingCloudFX Application including, but not limited to the data collection practices, the use of cookies, the tracking of visitor behavior, and the capture of all user-related information such as browser information, consumer-inputted data, and behavior while on the website.

Usage of the MarketingCloudFX Application is limited to Customer. Customer will not permit a third party to access or use the MarketingCloudFX Application for any purpose.

Customer agrees not to use telephone number information in the address, envelope, body of a letter, or elsewhere in a direct mail piece, telemarketing script, or other marketing program mailer.

Customer agrees not to participate in deceptive, misleading, or unethical practices. Customer agrees not to utilize MarketingCloudFX on any website associated with explicit, pornographic, violent, or illegal content. Customer will use the MarketingCloudFX Application in a manner consistent with all applicable local, state, and federal regulations and laws.

Customer agrees not to use the MarketingCloudFX Application, either in whole or in part, as a factor in: (i) establishing an individual’s eligibility for credit or insurance; (ii) connection with underwriting individual insurance; (iii) evaluating an individual’s eligibility for employment or promotions, reassignment or retention as an employee; (iv) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; or (v) for soliciting survivors of deceased person.

If applicable, Customer agrees to follow all applicable laws regarding call recording, included, but not limited to federal and state laws and regulations. As a convenience, WebpageFX will make technology available for Client to automatically play a prerecorded message on an inbound call upon Customer’s request notifying the calling party that the call may be recorded. Customer must determine if the prerecorded message is adequate to conform to all laws.

Customer Responsibilities

Effective use of WebpageFX’s services presumes a certain degree of knowledge and skill on the part of the Customer. For example, it is presumed that Customer possesses at least a rudimentary knowledge of Internet-related processes and software applications such as e-mail, FTP, Telnet, and web-browsing. Implementing the MarketingCloudFX Application will require some knowledge of HTML and JavaScript. WebpageFX will not be held responsible for Customer’s inability to use the MarketingCloudFX Application due to Customer’s lack of the requisite knowledge and skills. WebpageFX may provide reasonable assistance to Customer for the implementation of the MarketingCloudFX Application at Customer’s expense. Customer is responsible to prevent any confidential, sensitive, protected, or similar data from being transmitted to the MarketingCloudFX Application.

Customer shall prevent unauthorized usage or copying of data from the MarketingCloudFX Application. Without limiting the foregoing, Customer will implement a system of controls that will: (i) protect the integrity of the data in the MarketingCloudFX Application; and (ii) limit access to that data to only authorized employees of Customer with a need to access that information to enable Customer’s use of that data as authorized.

Customer shall require that all marketing efforts, solicitations, advertising copy, and other communications derived either in whole or in part from the MarketingCloudFX Application or its data contained therein: (i) not contain any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation or the source of such recipient’s name and address; (ii) be designed such that the recipient of such communication cannot determine that state title or registration information was used as an information source; and (iii) be in good taste in accordance with generally recognized standards of high integrity.

User-supplied Content

All services may be used for lawful purposes only. Through WebpageFX’s Service, Customer may have access to services that enable Customer to send or post materials (“content”) and make that content available to others. Customer must not submit, publish, or display any defamatory, inaccurate, abusive, obscene, infringing, or threatening content. In addition, Customer may not submit, publish, or display any content that violates any US Federal, State, or Local law. Customer is solely responsible for the content made accessible through the MarketingCloudFX Application. Customer may not use the MarketingCloudFX Application to assist any other person or entity to violate any Federal, State, or Local laws, ordinances, or regulations.

WebpageFX is not obligated to monitor the MarketingCloudFX Application to examine available content. Customer hereby acknowledges that if WebpageFX is made aware of content that is determined to be, in WebpageFX’s sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, WebpageFX has the right, but not the obligation, to edit, remove or deny access to such content. WebpageFX may disclose any content or records concerning Customer’s account as required to satisfy any law, regulation, governmental request or court order.

Pornography and sex-related merchandising are prohibited. This includes sites that may infer sexual content, display nudity, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to WebpageFX’s technology or any other server on the Internet. Links to such materials are also prohibited.

The following content and activities may not be displayed or promoted by Customer nor associated in any way with Customer’s account or the MarketingCloudFX Application. WebpageFX shall be the sole arbiter as to what constitutes violation of this provision.

• Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or local law.
• Copyrighted material used without permission.
• Material or activities judged by WebpageFX to be threatening, obscene, disparaging, or hate-related.
• Material protected by trade secret or other statute.
• Pornography, nudity, erotica, and sex-related merchandising, including sites that may infer sexual content, or link to adult content elsewhere.
• Content that promotes any illegal or prohibited activity.
• Content that may be damaging to WebpageFX’s servers or to any other server on the Internet.
• Pirated software (warez).
• Hacking/Phreaking – Includes sites with material, links, or resources for hacking, phreaking, viruses, anarchy, or any type of site that promotes or participates in willful harm to Internet sites or providers.
• IRC, IRC Bots, IRC BNC, etc.
• Promotion or sale of unsolicited or bulk e-mail (SPAM) software or services.
• Unsolicited or bulk e-mail or newsgroup posts (SPAM) which references and/or is traceable to WebpageFX and/or any Customer in any way.
• Illegally distributed entertainment content (music, film, etc.).
• Harassing, annoying, or otherwise interfering with any person’s, group’s, or organization’s use or enjoyment of the Internet experience.
• Links or reference to any of the above.

Email Use and Anti-spam Policy

MarketingCloudFX may not be the source, intermediary, or destination address involved in the transmission of unsolicited bulk e-mail (UBE), unsolicited commercial e-mail (UCE), spam, off-topic newsgroup posts, flames, or mail bombs. Customer’s domain may not be referenced or traceable in any way as a result of any of the above. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates the use of WebpageFX’s network or equipment. WebpageFX reserves the right to refuse and/or cancel service to known spammers. WebpageFX reserves the sole right to determine what constitutes violation of this provision.

SPAM is any unsolicited e-mail, post, or facsimile in the newsgroup, e-mail, fax, or other electronic medium. Any unsolicited commercial email (no matter how relevant or important it may be) is spam; any unsolicited bulk email (commercial or not) is also spam. Mass and unsolicited are not concurrent conditions for spam. One and/or the other is sufficient. In the medium of newsgroups, spam is considered to be any off-topic posting and/or any identical posting to multiple newsgroups. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one’s e-mail address accessible to the public shall not constitute a request or invitation to receive messages.

Any spam complaints received about Customer are addressed seriously. After investigation, if it is deemed by WebpageFX that spamming practices have indeed been utilized using the MarketingCloudFX Application, WebpageFX reserves the right to terminate an account immediately with no refund. Customer expressly accepts WebpageFX’s right to assess this penalty and agrees to its assessment and payment.

MarketingCloudFX users must comply with all laws and regulations applicable to bulk or commercial email when using the MarketingCloudFX Service, including without limitation the United States CAN-SPAM Act of 2003 as well as all other local or national laws applicable to the regions where MarketingCloudFX users have business operations or where their email recipients are located.  Furthermore, WebpageFX and its third-party data suppliers have no obligation to inform Customer of these laws.  Customer should consult with legal counsel regarding applicable Laws before initiating a direct mail, fax or telemarketing campaign. In addition, Customer shall use the MarketingCloudFX Application in compliance with: (i) all regulations, rule and policies adopted and communicated by WebpageFX and its third-party data suppliers to Customer from time to time and communicated to Customer; and (ii) the Data & Marketing Association’s Guidelines for Ethical Business Practice.

In addition, you may not send any Unsolicited Email by use or means of the MarketingCloudFX Service. “Unsolicited Email” is defined as email sent to persons other than: (i) persons with whom you have an existing business relationship, OR (ii) persons who have consented to the receipt of such email, including publishing or providing their email address in a manner from which consent to receive email of the type transmitted may be reasonably implied.

All Bulk or Commercial Email sent using MarketingCloudFX must include provision for recipients to revoke consent, i.e., to “opt out”, of receiving future email contacts from the sender. You must either use the Unsubscribe tools supplied by default with the MarketingCloudFX Service; or, if you choose to override the MarketingCloudFX default tools, you must have procedures in place to allow an email recipient to easily opt-out, such as an unsubscribe link in the body of the e-mail, or instructions to reply with the word “Remove” in the subject line. Any such revocations of consent should be honored within 72 hours.

Copyright Infringement

It is WebpageFX’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity. If we remove or disable access to comply with the Digital Millennium Copyright Act, we will make a good-faith attempt to contact the owner or administrator of each affected site so that they may make a counter notification pursuant to sections 512(g)(2) and (3) of that Act.

Fees

Customer shall pay to WebpageFX all of the fees specified in the executed agreements. Any payment not received from Customer by the due date shall be subject to suspension of the MarketingCloudFX Application by WebpageFX without liability to WebpageFX, until such account is paid in full.

Cancellation Policy

Customer bears all responsibility for ensuring effective cancellation of Customer account. This responsibility includes providing effective and authenticated notification to WebpageFX of Customer’s desire to cancel an account. This responsibility shall not be waived or modified by WebpageFX or Customer in any way at any time subsequent to the submission by Customer of an cancellation notice for WebpageFX account. WebpageFX will act immediately to implement Customer’s cancellation notice, providing the terms of this cancellation policy have been followed as well as Customer meeting all obligations in all agreements with WebpageFX. WebpageFX is not required to provide client with a prorated refund of services paid. Customer is required to pay WebpageFX for services rendered.

Confidentiality

As used herein, “Confidential Information” means all confidential information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of any executed or proposed agreement between Customer and WebpageFX. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known by Receiving Party outside of its relationship with Disclosing Party in a lawful manner. Under no circumstances shall the Receiving Party be prohibited from providing information to (a) law enforcement, or (b) any party based on a court order. The Receiving Party shall not use any Confidential Information for any purpose other than for the execution of any agreement between the parties. The Receiving Party agrees to protect the Confidential Information in the same manner that it protects its own confidential information.

Proprietary Rights

The MarketingCloudFX Application and all intellectual property rights therein are owned or licensed by WebpageFX. Except for the Subscription granted here-under, the Customer has no rights, titles, or interests to the MarketingCloudFX Application. WebpageFX shall retain all right, title, and ownership in and to the processes, source code, algorithms, and proprietary knowledge contained in the MarketingCloudFX Application. WebpageFX shall retain all right, title, and ownership in and to the data generated by the use of the MarketingCloudFX Application. WebpageFX shall retain all right, title, and ownership in and to the data inputted by or on behalf of Customer into the MarketingCloudFX Application with the exception of Customer trademarked or copyrighted content.

Limitation of Liability

In no event shall WebpageFX be liable for any direct, indirect, special, incidental, consequential, punitive or exemplary damages however caused and whether in contract, tort or under any other theory of liability, whether or not WebpageFX has been advised of the possibility of such damages including, without limitation, loss of business, lost profits or revenue. WebpageFX’s aggregate liability for damages here-under shall not exceed the total amount of fees paid and/or due by the Customer to WebpageFX in a six (6) month period. WebpageFX’s service is provided on an “as is, as available” basis. WebpageFX gives no warranty, expressed or implied, for the MarketingCloudFX Application, including without limitation, any warranty of merchantability or warranty of fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by WebpageFX and its employees.

Indemnification

Customer agrees that it shall defend, indemnify, save and hold WebpageFX harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against WebpageFX, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, it’s agents, employees or assigns. Customer agrees to defend, indemnify and hold WebpageFX harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with a MarketingCloudFX Application; (2) any material supplied by Customer infringing or allegedly infringing on the proprietary rights of a third party and (3) copyright infringement.

WebpageFX expects that its Customers will fully comply with all applicable laws. A Customer’s failure to comply with those laws will violate this policy. Finally, WebpageFX wishes to emphasize that in accepting services, Customer indemnifies WebpageFX for the violation of any law or WebpageFX policy that results in loss to WebpageFX or the bringing of any claim against WebpageFX. This means, among other things, that if WebpageFX is sued because of activities of Customer that violate any law, or this policy, the Customer will pay any damages awarded against WebpageFX plus costs and reasonable attorneys’ fees.

Notifications

WebpageFX relies on e-mail as the primary means of notifying Customers of important system news, problems with Customers’ accounts or usage of those accounts, billing problems, etc. Any notifications will be e-mailed to Customer domain’s primary e-mail address and/or to the contact e-mail address provided by Customer upon executing an agreement with WebpageFX. Customer agrees to monitor these e-mail addresses on a regular basis and to respond promptly, if required, to any notifications. Customer agrees to notify WebpageFX of any changes to Customer’s physical or e-mail address, telephone numbers, etc.

Data Breach Notifications

In the event Customer is subject to a data security breach with respect to the data contained in the MarketingCloudFX Application, Customer shall promptly take commercially reasonable steps to respond to and attempt to remedy the breach and shall notify WebpageFX in writing within twenty-four (24) hours of discovery of such breach.

Policy Changes

These policies may change with or without notice. Customer agrees to comply with these policies in their current and future state. Customer agrees to periodically review published policies to ensure understanding of and compliance with current policies.

Phone Calls

When you are in contact with us by phone the call may be monitored or recorded for quality assurances purposes. Your continued participation in any telephone conversation serves as express consent to be monitored or recorded.

Refusal of Service

WebpageFX reserves the right to refuse or cancel service at WebpageFX’s sole discretion, with or without reason, with or without warning.

Jurisdiction

Customer agrees to submit to the jurisdiction of the applicable municipal, county, state or federal court of WebpageFX’s physical residence for any litigation, mediation, or arbitration which may arise from any dispute concerning any of the provisions herein. Controlling law shall be that of the State of WebpageFX’s residence. The prevailing party in any litigation hereunder shall be entitled to recover its reasonable attorney’s fees and court costs.

Enforcement

The invalidity, illegality, or unenforceability of any one or more provisions hereof shall in no way affect or impair the validity, legality, or enforceability of the remaining provisions hereof, which shall remain in full force and effect.

The failure of a party to these Terms to object to or to take action with respect to the conduct of the other party which is in violation of the terms hereof will not be construed as a waiver of any rights the non-objecting party may have, nor of any future claims of breach or wrongful conduct.

Right to Injunctive Relief

Customer hereby acknowledges that any unauthorized use of the MarketingCloudFX Application or the data contained therein will cause irreparable harm and injury to WebpageFX and/or WebpageFX’s third party data providers for which there is no adequate remedy at law. Customer further acknowledges that any unauthorized use of the MarketingCloudFX Application or the data contained therein may, at WebpageFX’s sole discretion, be treated as a material breach of these Terms and Conditions. In addition to all other remedies available under these Terms and Conditions, at law or in equity, Customer further agrees that WebpageFX and/or WebpageFX’s third-party data providers shall be entitled to injunctive relief in the event Customer uses the MarketingCloudFX Application or the data contained therein in violation of the limited license granted by these Terms and Conditions.

Accessibility

If accessibility or ADA compliance services are utilized, whether purchased or not, the Customer is aware that the use of these services does not guarantee full immunity to claims, and that using the MarketingcloudFX tool on the Customer’s website does not, on its own, fulfill all of the requirements of applicable law. The Customer warrants and affirms that it irrevocably waives any claims against the Company from any liability, legal or otherwise, and that it shall have not claims made against the company in this regard.

Data Processing Agreement

Effective: December 7, 2022

This Data Processing Addendum (“DPA“) is incorporated into, and is subject to the terms and conditions of, the Agreement between WebpageFX LLC d/b/a WebFX (“WebFX”) (together with its Affiliates, “WebFX”) and the customer entity that is a party to the Agreement (“Customer” or “you“). 

All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. For the avoidance of doubt, all references to the “Agreement” shall include this DPA (including the SCCs (where applicable), as defined herein). 

1. Definitions 

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity. 

“Agreement” means WebFX’s Proposal, the Terms & Conditions of that Proposal, together with WebFX’s MarketingCloudFX Terms and Conditions, as such terms or agreement may be updated by WebFX from time to time.

“Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.

“Customer Data” means any personal data that WebFX processes on behalf of Customer via the Service, as more particularly described in this DPA. 

“Data Protection Laws” means all data protection laws and regulations applicable to a party’s processing of Customer Data under the Agreement, including, where applicable, EU and UK Data Protection Law and Non-EU and UK Data Protection Laws. 

“EU and UK Data Protection Law” means all data protection laws and regulations applicable to Europe, including (i) Regulation (EU) 2016/679 of the European Parliament and of the Council 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) (“GDPR”); and (ii) the United Kingdom General Data Protection Regulation (“UK GDPR“). 

“Europe” means, for the purposes of this DPA, the European Union, the European Economic Area and/or their member states, including Switzerland. 

“Non-EU Data Protection Laws” means the California Consumer Privacy Act (“CCPA”), as amended by the California Privacy Rights Act (“CPRA”); the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); and the Brazilian General Data Protection Law (“LGPD”), Federal Law no. 13,709/2018.

“SCCs” means the standard contractual clauses for processors as approved by the European Commission or Swiss Federal Data Protection Authority (as applicable).

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of or access to, Customer Data on systems managed or otherwise controlled by WebFX.

“Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords; or (f) other information that falls within the definition of “special categories of data” under applicable Data Protection Laws. 

“Service Data” means any data relating to the Customer’s use, support and/or operation of the Service, including information relating to volumes, activity logs, frequencies, bounce rates or other information regarding emails and other communications Customer generates and sends using the Service. 

“Sub-processor” means any processor engaged by WebFX or its Affiliates to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or this DPA. Sub-processors may include third parties or Affiliates of WebFX but shall exclude WebFX employees or consultants.

“UK Addendum” means the UK Addendum to the European Union SCCs as approved by the United Kingdom. 

The terms “personal data,” “controller,” “data subject,” “sale,” “share,” “processor,” and “processing” shall have the meaning given to them under Data Protection Laws or if not defined thereunder, the GDPR and UK GDPR, and “process,” “processes,” and “processed” shall be interpreted accordingly. 

2. Roles and Responsibilities 

2.1 Parties’ roles.  In accordance with applicable Data Protection Laws, the parties acknowledge and agree that with regard to the processing of Customer Data, Customer is the controller and WebFX is a processor and/or service provider acting on behalf of Customer, as further described in Annex A (Details of Data Processing) of this DPA. 

2.2 Purpose limitation. WebFX shall process Customer Data only in accordance with Customer’s documented lawful instructions as set forth in the Agreement and this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing (“Permitted Purposes”). Further, WebFX shall not: (i) collect, retain, use, or disclose Customer Data for a commercial purpose (other than providing the Service) or otherwise outside the direct business relationship between Customer and WebFX; (ii) engage in the “Sale” or “Share” of Customer Data, nor shall WebFX combine Customer Data of Customer with any other data held by or accessible to WebFX, unless the parties expressly agree otherwise. The parties agree that the Agreement sets out Customer’s instructions to WebFX in relation to the processing of Customer Data, and processing outside the scope of these instructions (if any) shall require the parties to negotiate in good-faith on any amendments. WebFX shall not sell Customer Data as the term “sell” (or similar term) is defined by applicable Data Protection Laws. Additionally, if permitted under applicable Data Protection Laws, WebFX may de-identify or aggregate Customer Data as part of performing the Services specified in this DPA and the Agreement.

2.3 Prohibited data. Customer will not provide (or cause to be provided) any Sensitive Data to WebFX for processing under the Agreement, and WebFX will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident or otherwise. For the avoidance of doubt, this DPA will not apply to Sensitive Data. 

2.4 Customer compliance. Customer represents and warrants that (i) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Customer Data and any processing instructions it issues to WebFX; and (ii) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for WebFX to process Customer Data for the purposes described in the Agreement. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data. Without prejudice to the generality of the foregoing, Customer agrees that it shall be responsible for complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Service, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. 

2.5 Lawfulness of Customer’s instructions. Customer will ensure that WebFX’s processing of the Customer Data in accordance with Customer’s instructions will not cause WebFX to violate any applicable law, regulation, or rule, including, without limitation, Data Protection Laws. WebFX shall promptly notify Customer in writing, unless prohibited from doing so under applicable Data Protections Laws, if it becomes aware or believes that any data processing instruction from Customer violates the applicable Data Protection Laws or is unable to meet the requirements of this DPA, allowing Customer to take reasonable and appropriate steps to stop and remediate any unauthorized use of Customer Data.

3. Sub-processing 

3.1 Authorized Sub-processors. Customer agrees that WebFX has general authorization to engage Sub-processors to process Customer Data on Customer’s behalf. WebFX’s current Sub-processors are set out in Annex III and/or here.  

3.2 Sub-processor obligations. WebFX shall: (i) enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Customer Data as those in this DPA, to the extent applicable to the nature of the service provided by such Sub-processor; and (ii) remain responsible and liable for such Sub-processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-processor that cause WebFX to breach any of its obligations under this DPA.

4. Security 

4.1 Security Measures. WebFX shall implement and maintain appropriate technical and organizational security measures that are designed to protect Customer Data from Security Incidents and designed to preserve the security and confidentiality of Customer Data and as set out in Annex II. 

4.2 Confidentiality of processing. WebFX shall ensure that any person who is authorized by WebFX to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

4.4 Security Incident response. Upon becoming aware of a Security Incident, WebFX shall: (i) notify Customer without undue delay, and, where required by law, no later than 72 hours from becoming aware of the Security Incident; (ii) provide information relating to the Security Incident as it becomes known or as is reasonably requested by Customer; and (iii) promptly take reasonable steps to contain and investigate any Security Incident. WebFX’s notification of or response to a Security Incident under this Section 4.4 shall not be construed as an acknowledgment by WebFX of any fault or liability with respect to the Security Incident.

4.5 Customer responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Service, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Service, and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Service. 

5. Security Reports and Audits 

5.1 Audit rights. WebFX shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by Customer, at Customer’s expense, in order to assess compliance with this DPA. Customer acknowledges and agrees that it shall exercise its audit rights under this DPA (including this Section 5.1 and where applicable, the SCCs) and any audit rights granted by Data Protection Laws, by instructing WebFX to comply with the audit measures described in Section 5.2 below. Customer will be responsible to pay WebFX at WebFX’s standard hourly rates for time required to cooperate or respond to an audit request, and Customer may not exercise its audit rights more often than biannually, unless otherwise required by applicable Data Protection Laws.  

5.2 Security due diligence. WebFX shall respond to all reasonable requests for information made by Customer, at Customer’s full expense, to confirm WebFX’s compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, by making additional information available regarding its information security program upon Customer’s written request, provided that Customer shall not exercise this right more than once per calendar year. 

6. International Transfers 

6.1 Data center locations. Customer acknowledges that WebFX may transfer and process Customer Data to and in the United States and anywhere else in the world where WebFX, its Affiliates or its Sub-processors maintain data processing operations. WebFX shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws. 

6.2 European Data transfers. To the extent that WebFX is a recipient of Customer Data protected by EU and UK Data Protection Laws, the parties agree that WebFX makes available the mechanisms listed below: 

WebFX agrees to abide by and process EU Data in compliance with the SCCs and UK Addendum, which are incorporated in full by reference and form an integral part of this DPA.

a)     EU Standard Contractual Clauses (“EU SCCs”).  To the extent required by applicable Data Protection Laws, the parties agree that the EU SCCs will apply to personal data that is transferred under the Agreement from the European Economic Area or Switzerland, either directly or via onward transfer, to any country or recipient outside the European Economic Area or Switzerland that is not recognized by the European Commission (or, in the case of transfers from Switzerland, the competent authority for Switzerland) as providing an adequate level of protection for personal data (“Restricted Transfer”). For purposes of the EU SCCs, WebFX agrees that it is the “data importer” and Customer is the “data exporter”. For data transfers from the European Economic Area that are subject to the EU SCCs, the EU SCCs, Module 2 (Controller to Processor), will be deemed entered into (and incorporated into this DPA by this reference) and completed as follows:

i.      In Clause 7, the optional docking clause will apply;

ii.     In Clause 9, Option 2 will apply and the time period for notice of Subprocessor changes will be 30 days;

iii.   In Clause 11, the optional redress language will not apply;

iv.    In Clause 13(a), all three options may be retained and apply, depending on the circumstances, and as relevant where the transfer falls within the territorial scope of the Regulation (EU) 2016/679;

v.     In Clause 17, the EU SCCs will be governed by Irish law;

vi.    In Clause 18(b), disputes will be resolved before the courts of Ireland; and

vii.  Annex I (Description of Processing) of this DPA serves as Annex I of the EU SCCs; Annex II (Technical and Organizational Security Measures Implemented by the Service Provider) of this Addendum serves as Annex II of the EU SCCs and Annex II (List of Subprocessors) serves as Annex III of the EU SCCs.

Additionally, signature to this DPA shall constitute all necessary and required signatures to the EU SCCs.

b)     UK Addendum. To the extent required by applicable Data Protection Laws, the parties agree that the UK Addendum to the EU Standard Contractual Clauses shall apply. To the extent that the UK Addendum applies, Annexes I, II, and III of this DPA shall also apply. For purposes of the UK Addendum, WebFX agrees that it is the “data importer” and Customer is the “data exporter”.  For data transfers from the United Kingdom that are subject to the UK Addendum, the UK Addendum will be deemed entered into (and incorporated into this DPA by this reference) and completed as follows:

i.      For Table One, the details as set out in Annex I of this DPA shall apply.

ii.     For Table Two, the check-box referring to the following shall apply:

“the Approved EU SCCs, including the Appendix Information and with only the                         modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the      purposes of the UK Addendum.”

Within the table, Module 2 shall apply and shall be filled out in the same way as the EU SCCs as filled out in Section 7(a) (EU Standard Contractual Clauses) above.

iii.   For Table Three, the following shall apply to the referenced columns: Annex I (Description of Processing) of this DPA shall apply to the columns entitled Annex IA and Annex IB; Annex II (Technical and Organizational Security Measures Implemented by the Service Provider) of this DPA shall apply to the column entitled Annex II; and Annex III (List of Subprocessors) shall apply to the column entitled Annex III.

iv.    For Table Four, only the exporter shall have the right to terminate this DPA.

Additionally, signature to this DPA shall constitute all necessary and required signatures to the UK Addendum.

7. Return or Deletion of Data 

7.1 Deletion on termination. Upon termination or expiration of the Agreement and upon Customer’s written request, WebFX shall delete all Customer Data (including copies) in its possession or control, except that this requirement shall not apply to the extent WebFX has a lawful purpose or is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data WebFX shall securely isolate, protect from any further processing and eventually delete in accordance with WebFX’s deletion policies, except to the extent required by applicable law. 

8. Data Subject Rights and Cooperation 

8.1 Data subject requests. As part of the Service, WebFX provides Customer with a number of self-service features, that Customer may use to retrieve, correct, delete or restrict the use of Customer 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 via Customer’s account at no additional cost. In cases where a self-service feature is not sufficient for Customer to meet their legal obligations, Customer may submit a written request to WebFX for further assistance at Customer’s expense. In addition, WebFX shall, taking into account the nature of the processing, provide reasonable additional assistance to Customer to the extent possible to enable Customer to comply with its data protection obligations with respect to data subject rights under Data Protection Laws. In the event that any such request is made to WebFX directly, WebFX shall not respond to such communication directly except as appropriate (for example, to direct the data subject to contact Customer) or legally required, without Customer’s prior authorization. If WebFX is required to respond to such a request, WebFX shall promptly notify Customer and provide Customer with a copy of the request unless WebFX is legally prohibited from doing so. For the avoidance of doubt, nothing in the Agreement (including this DPA) shall restrict or prevent WebFX from responding to any data subject or data protection authority requests in relation to personal data for which WebFX is a controller. 

8.2 Subpoenas and court orders. If a law enforcement agency sends WebFX a demand for Customer Data (for example, through a subpoena or court order), WebFX shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, WebFX may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then WebFX shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy, unless WebFX is legally prohibited from doing so.

8.3 Data protection impact assessment. To the extent required under applicable Data Protection Laws, WebFX shall (taking into account the nature of the processing and the information available to WebFX) provide all reasonably requested information regarding the Service to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws. WebFX shall comply with the foregoing by: (i) complying with Section 5 (Security Reports and Audits); (ii) providing the information contained in the Agreement, including this DPA; and (iii) if the foregoing sub-sections (i) and (ii) are insufficient for Customer to comply with such obligations, upon request, providing additional reasonable assistance (at Customer’s expense). 

1. Jurisdiction-Specific Terms 

To the extent WebFX processes Customer Data originating from and protected by Data Protection Laws in one of the jurisdictions listed in Addendum A, then the terms specified in Addendum A with respect to the applicable jurisdiction(s) (“Jurisdiction-Specific Terms”) apply in addition to the terms of this DPA. In the event of any conflict or ambiguity between the Jurisdiction-Specific Terms and any other terms of this DPA, the applicable Jurisdiction-Specific Terms will take precedence, but only to the extent of the Jurisdiction-Specific Terms’ applicability to WebFX.

1. Limitation of Liability 

10.1 For the avoidance of doubt, WebFX shall be liable to Customer for any indemnification, contribution, or other amount due and owing under this Agreement solely and to the extent that Customer has a valid, payable insurance claim with respect to such damages pursuant to a valid policy maintained by WebFX, and solely to the extent of the amount of such claim. In no event shall WebFX have any direct or indirect liability for any indemnification, contribution or other claim by Customer. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), NO MATTER HOW SUCH DAMAGES OR LOST PROFITS ARE INCURRED INCLUDING CUSTOMER’S, OR ITS EMPLOYEES’, AGENTS’ OR CONTRACTORS’ NEGLIGENCE.

10.2 Any claims made against WebFX 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.

11. Relationship with the Agreement 

11.1 This DPA shall remain in effect for as long as WebFX carries out Customer Data processing operations on behalf of Customer or until termination of the Agreement (and all Customer Data has been returned or deleted in accordance with Section 7.1 above).

11.2 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.

11.3 In the event of any conflict or inconsistency between this DPA and the WebFX Standard Terms of Use, the provisions of the following documents (in order of precedence) shall prevail: (a) SCCs and UK Addendum; then (b) this DPA; and then (c) the WebFX Standard Terms of Use.

11.4 Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.

11.5 Notwithstanding anything to the contrary in the Agreement (including this DPA), WebFX shall have a right to collect, use and disclose Service Data for its legitimate business purposes, such as: (i) for accounting, tax, billing, audit, and compliance purposes; (ii) to provide, develop, optimize and maintain the Service; (iii) to investigate fraud, spam, wrongful or unlawful use of the Service; and/or (iv) as required by applicable law.

To the extent any such Service Data is considered personal data under Data Protection Laws, WebFX shall be responsible for and shall process such data in accordance with the WebFX Privacy Policy and Data Protection Laws. For the avoidance of doubt, this DPA shall not apply to Service Data. For the avoidance of doubt, WebFX shall remain the owner of the Service Data.

11.6 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

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

11.8 The parties agree that acceptance of the Agreement shall constitute acceptance to this DPA. You agree to enter into this DPA (including, where applicable, the EU Standard Contract Clauses and UK Addendum) on behalf of yourself and in the name and on behalf of your Affiliates.

ANNEX I

DETAILS OF DATA PROCESSING

(a) Subject matter: The subject matter of the data processing under this DPA is the Customer Data. 

(b) Duration of processing: WebFX will process Customer Data as outlined in Section 7 (Return or Deletion of Data) of this DPA.

(c) Purpose of processing: WebFX shall only process Customer Data for the Permitted Purposes, which shall include: (i) processing as necessary to provide the Service in accordance with the Agreement; (ii) processing initiated by Customer in its use of the Service; and (iii) processing to comply with any other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement. 

(d) Nature of the processing: WebFX provides an email service, automation and marketing platform and other related services, as more particularly described in the Agreement.

(e) Types of Customer Data: Customer may upload, submit or otherwise provide certain personal data to the Service, the extent of which is typically determined and controlled by Customer in its sole discretion, and may include the following types of personal data:

• Identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including, but not limited to, email address, postal address, and phone number); personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); non-sensitive financial information (account details, payment information).

(f) Sensitive Data: WebFX does not want to, nor does it intentionally, collect or process any Sensitive Data in connection with the provision of the Service.

(g) Processing Operations: Customer Data will be processed in accordance with the Agreement and for as long as necessary to fulfill the purpose of the Agreement (including this DPA) and may be subject to the following processing activities:

• Storage and other processing necessary to provide, maintain and improve the Service provided to Customer pursuant to the Agreement; and/or
• Disclosures in accordance with the Agreement and/or as compelled by applicable law.

(h) Subprocessors: For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:

• The subject matter, nature and duration of the processing shall be the same as that set out for the broader Services as set out in the Agreement and this DPA.

C. COMPETENT SUPERVISORY AUTHORITY

To the extent applicable under Applicable Laws, identify the competent supervisory authority/ies.

Irish Data Protection Commission

ANNEX II

DETAILS OF SECURITY MEASURES FOLLOWED BY WEBFX

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, WebFX shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:

1.     the pseudonymisation and encryption of personal data, where applicable;

2.     the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

3.     the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and

4.     a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.

ANNEX III

APPROVED SUBPROCESSORS

WebFX engages Sub-processors to assist with our processing activities. A list of our Sub-processors and our purpose for engaging them is located on our WebFX Sub-Processors Page available at https://www.marketingcloudfx.com/marketingcloudfx-terms-conditions/sub-processors/, which is incorporated into this DPA.

ADDENDUM A

JURISDICTION-SPECIFIC TERMS

Canada: 

1. WebFX takes steps to ensure that WebFX’s Sub-processors, as described in Section 3 (Sub-processing) of the DPA, are third parties under PIPEDA, with whom WebFX has entered into a written contract that includes terms substantially similar to this DPA. WebFX conducts appropriate due diligence on its Sub-processors. 
2. WebFX will implement technical and organizational measures as set forth in Section 4 (Security) of the DPA. 

WebFX Cookie Statement

This Cookie Statement explains how WebFX uses cookies to provide our proprietary digital marketing platform, MarketingCloudFX, and other services (collectively, our “Services”) to business clients, including when those clients’ customers visit websites operated by our clients.

A cookie is a small file placed on the hard drive of your computer. A website visitor may refuse to accept browser cookies by activating the appropriate setting on their browser.

This information is provided to facilitate our clients ability to comply with applicable cookie law regulations.

We use cookies as part of our Services for purposes including the following:

• Identify visitors to our clients’ websites and allow our clients to fulfill requests or offer goods or services to those visitors.
• Help the websites work more efficiently.
• Store information about the preferences of website visitors.
• Customize content offered by those websites.
• Protect those websites from malicious activity.

In addition to WebFX’s use of cookies on our clients’ websites, our clients may utilize cookies themselves, or our clients may utilize other third-party service providers, including advertisers, ad networks and servers, content providers, and application providers. We do not control these third parties’ tracking technologies or how they may be used.

Here is a complete list of the cookies used by MarketingCloudFX as of June 21, 2023:

Cookie Name	Expiration
rbSession	1 day
mcfxNumberSwap	2 years
fx_referrer	1 week
fx_count	2 years
mcfxVSID	10 minutes
gclid	1 week
fx_uuid	2 years
fx_count	2 years
utm_source	1 day
utm_medium	1 day
utm_segment	1 day
utm_campaign	1 day
fx_document_title	session
mcfxUTM	1 day
mcfxCookiesVersion	2 years
mcfxMode	session
mcfxPGID	session
mcfxLAT	session
mcfxLNG	session
_fx	10 years
fx_info	1 week