GENERAL TERMS AND CONDITIONS OF CONTRACT / SERVICE AGREEMENT Ref.: VWM1709
As one party, Viwom Video Marketing S.L. (hereinafter Viwom Video Marketing), with Spanish tax id. number: B26510826 and a registered address at Teruel St. Nº 1, Floor 1º Offices C & D, 26006 based in Logroño, La Rioja (Spain), Sociedad de Responsabilidad Limitada Unipersonal (Single-Member Limited Liability Company) incorporated in Logroño before the notary, Mr. Víctor Manuel de Luna Cubero, entered in the Logroño Mercantile Register, at Volume 768, Book 0, Folio 219, Section 8, Page LO 15697.
And as the other party, the contracting party, a physical or legal person completing the sign up form (hereinafter Customer) which appears on www.viewed.video, with whom a commercial activity is established. After learning about the characteristics of the service, the contracting party is familiar with, understands and freely accepts these present Terms and Conditions.
Both parties are interested in formalizing this present agreement and accept the terms and conditions established as follow.
Viwom Video Marketing: a telematics service provider, basically specialised in the use of video as a marketing tool and in the distribution of such videos via email. This technology can be used to conduct email marketing campaigns with embedded videos and has been registered under the brand name “Viewed”.
Customer: any physical or legal person who completes, directly o through third parties, the sign-up form and chooses a service offered by Viewed.
Video email marketing: The innovative feature in email marketing campaigns. In this type of campaign videos can be incorporated which play in the body of the email message itself.
Video play or video impression or view: The act of viewing a video on any type of player, in a customer’s email, a browser or online player.
Viewed campaigns: email marketing campaigns with the special feature of including a video embedded in the email itself. The video can play directly in the email or on a landing page.
Plan: The service offered by Viewed, contracted by the customer and subject to the terms and conditions of this agreement.
Original HTML: File in HTML format, provided by the user with the design of its email marketing campaign, containing everything required to be sent by email, apart from incorporation of the video.
Resulting HTML: Original HTML but automatically modified by the Viewed platform so that it contains all the code required to show the customer’s video to recipients, regardless of the technology they use to watch it.
Responsive campaigns: Viewed campaigns which tailor video size to the screen size used by the recipients of the video email.
Viewed platform or customer area: web application developed and managed by Viewed to enable customers to access information on services contracted with VIVWOM, create Viewed campaigns, manage their videos and view statistics, among others. To access this application you must register with your User ID and Password.
User ID and Password: Users need access credentials for the Viewed platform consisting in a user identifier and a password to verify their identity. User ID and Password are specific to each customer and may not be shared, disclosed or published.
Call-to-action buttons: These are buttons incorporated in the campaigns to prompt recipients to do something (register, purchase a product, share the video on social networks, forward the email video, etc.).
Recipient: The receiver of video email campaigns.
Pack: Set of VIEWED resources and/or services a customer may acquire to conduct VIEWED campaigns.
2.1.- The purpose of this present agreement is to regulate the terms and conditions of customer access to the VIEWED service and to establish the method of payment for that service.
2.2.- This document together with all the additional information on the website www.viewed.video and any other supplementary information that VIEWED sends to the customer about the service constitute a single contractual arrangement which is binding on the parties.
3- SERVICE CHARACTERISTICS.
3.1.- Viwom consists of a technology that enables the inclusion of a video in the body of the recepient’s email using a polymorphic code that detects the conditions in which each video must be delivered according to the technology used by each recipient.
VIEWED enables the use of embedded videos in email marketing campaigns and its main objective is to ensure that its customers’ videos reach their chosen recipients directly through electronic media.
When a VIEWED campaign is conducted a high percentage of users will watch the video directly in their email, another group will watch a simulation of the video by mean of a sequence of frames without sound (animated file) and by clicking on the video they will be able to watch it with sound on a landing page and a small group will see a static image with the “play” icon and by clicking on it, they will see the campaign and the video perfectly in their web browser.
VIEWED detects the user’s technology and shows the video in the best possible conditions. In some cases, and depending on the device and user’s email client, videos can play automatically when the message is opened. In such cases, the video can be configured to autoplay or not. If autoplay is activated it, automatic reproduction will only be possible if the system is compatible, if autoplay is not activated users have to click on the video to play it. This characteristic can be configured when the campaign is being created. At the same time, the video can be configured to play with or without audio by activating the mute button and it can play on a loop if the loop button is activated.
3.2.- VIEWED has the necessary server, video and image hosting technologies to manage VIEWED campaigns sent to databases of unlimited size, as well as the opportune data security measures. VIEWED also has the auto-scalable unlimited server infrastructure to support high numbers of concurrent users watching the video embedded in a campaign and from different international locations.
Customer is hereby notified that videos, animated GIFs and VIEWED campaign video posters will be hosted during and after the campaign in a domain owned by VIEWED from which they will be served to each device and recipient. Customer can eliminate the video at any moment via its customer area and in such cases the campaigns associated with the video will also be eliminated. If customer does not renew the service, videos, animated GIFs and VIEWED campaign video posters hosted in a domain owned by VIEWED will be eliminated 12 months after the last renewal, period in which the customer has access to the platform after not renewing the service.
3.3.- For the correct operation of VIEWED campaigns the following indications must be taken into account and fulfilled:
• Production of the video and design of the campaign are the exclusive responsibility of customer who will create the campaign according to its marketing objectives and with the resources it deems opportune.
• Customer or whoever commissions said campaign on its behalf shall have basic HTML skills.
• Customer shall upload its video with the campaign for distribution to the VIEWED platform and shall follow the steps to complete the process of creating a VIEWED campaign.
• Customer is free to include in its design as many links to external pages, call-to-action buttons and any others it considers opportune.
• When the process of creating the VIEWED campaign is complete, customer undertakes not to change the code in the resulting Html file downloaded to launch its campaign. If, however, the user does modify said file, VIEWED will not be held liable for any errors or incompatibilities that may occur in the provision of the service.
• VIEWED is not an email marketing platform, and therefore, to send the resulting HTML obtained from the VIEWED platform to an email list of campaign recipients, the services of an Email Service Provider (ESP) must be contracted. The email list will always be the customer’s property and VIEWED shall not be responsible for it in any way, because dispatches will be made by the user using an ESP unrelated to VIEWED. In cases where customer asks VIEWED to send the service to the contact list delivered by customer under agreed terms and conditions, VIEWED shall be regarded as the data processor and shall observe the measures established for that purpose in the “Personal Data Protection” clause in this agreement.
• When the campaign creation process has finished, customer may download the resulting HTML. Sending this HTML does not involve additional data traffic for the dispatches because the images and/or videos are not sent, instead they load from VIEWED servers directly to users’ devices when they open their email.
3.4 Video format: Customer may upload its videos to the VIEWED platform in most formats, although the preferred formats are AVI, FLV, MOV or MP4 in the best available quality, if possible FULLHD 1080, provided the duration and/or capacity specified at each moment on VIEWED’s web in each plane is not exceeded. If customer attempts to upload a video that in seconds or megas exceeds any of the established limits the platform will show an error message.
VIEWED will automatically convert the video to all the formats and qualities required to send it in VIEWED campaigns to any recipient according to the device, operating system and email client used.
3.5 The VIEWED platform can provide measurements and statistics on the campaigns. The following statistical data can be obtained:
• Open rate: indicates the number of times an email marketing video campaign has been opened in recipients’ devices. The same recipient opening the same email twice counts as two opens, unless the recipient’s system has stored it in the cache memory in which case it would only count as one open.
• Play rate: the number of times the video is played on recipients’ devices. The play rate is the billing unit. If a user plays the video twice, two video impressions are counted, unless the video is loaded in the cache memory of the user’s device.
• Date and time: statistical data for video plays are shown by dates and time periods. The statistical data offered by VIEWED are not related to any email address and they will be general statistical data that customer may consult via the VIEWED platform.
3.6 Customer shall have access via its user name and password, to a tool called “Customer Area” where customer may manage and administer VIEWED campaigns, contract new plans, packs or added services, access invoices, and consult the statistics on its campaigns. Customer has sole responsibility for the use and safekeeping of the User ID and Password for the Customer Area. These data enable VIEWED to confirm customer authentication and grant permission to actions requested from the customer area. Use and disclosure of these identifiers, even to third parties, is customer’s sole responsibility.
3.7 Each time the system sends a video file download request to VIEWED servers, it counts as a video play, whether it is played embedded in the email or on the landing page for the video generated by VIEWED. A video play is not counted if only the preview of the video in GIF format or a static video poster image is shown.
3.8 Customer can voluntarily disable a campaign via the Customer Area. If a campaign is disabled the videos will no longer be shown. Instead an alternative image will be shown that the customer elects when creating the campaign.
3.9 Plans can incorporate a specific number of campaigns with response video as specified on VIEWED’s website at each time. Customer may contract more campaigns with this technology from the VIEWED platform at the prices indicated in Annex 1 hereto and on VIEWED’s website.
3.10 When the balance of video plays in your chosen payment plan, including the trial period of 500 video impressions has been 80% consumed, the system will send email notification to the customer recommending that it contract a pack with extra video plays to continue showing the videos in its campaigns. The same occurs when 90% of video impressions have been consumed and upon reaching 100% customer will receive another email notification that it has consumed all the contracted video plays.
3.11 The type of plans, the technical characteristics and services includedin each VIEWED Plan and the price to be paid for them is at all times clearly determined at www.viewed.video and explicitly listed in Annex I hereto, and may also be consulted from the customer area.
4.- VALIDITY AND DURATION.
4.1 The present agreement shall be valid from the day it is formalised, that is, when customer has completed the sign up process and is able to access its customer area, upon receiving access instructions and email confirmation that it has been activated.
4.2 The contract is valid for one month, renewable for identical periods of time as long as the client fulfills the requirements established in each plan and carry out the corresponding payments as indicated in Annex I.
4.3 User plans remain active as long as the user does not cancel the account and proceeded with the corresponding payments.
4.4 Campaigns require a positive video impressions balance.
4.5 The customer can cancel the plan at any time when they accessing to their admin area. The videos will no longer be shown. If cancellation occurs without having fully consumed the resources for the contracted plan, customer shall not obtain any financial compensation for the unconsumed part.
5.- PRICE AND METHOD OF PAYMENT
5.1 Access to the VIEWED platform is free, offering payment services within the user area. The price for each planis shown in Annex I attached here and on the VIEWED website. The corresponding taxes will be added to the prices indicated. The price for each plan depends on the number of monthly video impressions generated through their campaigns.
5.2 In any event, customer, who appears as such on the form, is responsible for paying the bills even if a third party intervenes on behalf of customer; consequently, liability for providing authentication data to a third party lies solely with customer.
5.3 The service has a video impressions counter. When this counter has a positive balance it will mean that the user has video impressions available to show the videos in its campaigns. If the counter is zero, the videos will not be shown to the recipients. If you need extra video impressions you can purchase them within your client área, or contact the commercial department to set up a customized plan. Prices for extra video impressions are shown in the customer area according to the rates in force at each time. Unit prices per video impression may vary depending on the plan hired.
5.4 If you switch plan, your video play counter and other resources will be readjusted taking into account the price per extra video play and resources for the new plan. Additional services not included in the price of plans will be paid for in advance as they are requested.
5.5 Payment method: initial sign up and successive renewals for video play plans will be paid for in advance using any of the payment methods VIEWED offers for its products: Currently, Paypal or credit card. Plans shall be paid monthly.
If the customer requires a deferred payment, he must to contact with VIEWED through firstname.lastname@example.org. VIEWED will analyze the request and, if accepted, the conditions will be sent to be applied to such deferred payment. In any case, VIEWED will apply a surcharge on the price.
In any case if after 30 days from the payment date on the invoice, the customer has not proceeded with the corresponding payment, VIEWED will suspend the account of the customer as well as all the services actived at that moment. If there is no payment date on the invoice, invoice date will be considered.
5.6 Please address any queries or requests related to billing and method of paying for the service to email@example.com.
5.7 The price amounts stipulated on the website and listed in Annex I hereto may be revised and changed by VIEWED. Services already paid for and not yet consumed, however, shall not be affected by the new price, which will only affect subsequent contracts.
5.8 Customers regarded as consumers and users under current Spanish legislation may exercise their right of withdrawal during the first 14 calendar days after signing up for the product. Consumers shall take into account the exceptions established by Spanish legislation on the matter of consumers and users concerning the right of withdrawal. To exercise the right of withdrawal, the consumer and user must send a request within 14 calendar days to firstname.lastname@example.org. Prior to cancelling the requested service the customer will be contacted with notification of the services consumed and will be sent a refund of the amount of money equivalent to the services not consumed.
5.9 VIEWED generates digital invoices and makes them available when the customer signs up and renews. They can also be consulted at any time via the customer area. By accepting these terms and conditions customer expressly accepts this billing process. If customer requests invoices in paper format VIEWED shall charge customer €2 to cover costs.
5.10 VIEWED generates digital invoices and makes them available when the customer signs up and renews. They can also be consulted at any time via the customer area. By accepting these terms and conditions customer expressly accepts this billing process. If customer requests invoices in paper format VIEWED shall charge customer €2 to cover costs.
6.- PARTIES’ OBLIGATIONS AND LIABILITY
6.1 Customer and VIEWED undertake to comply with all the terms of this agreement which apply to them, acting loyally and in good faith.
6.2 VIEWED undertakes to use all the resources available to it to offer the services in optimum conditions, making its best efforts to ensure they are provided as securely as possible, with the exception of any incidents which may occur outsidethe control of VIEWED. In this regard, VIEWED reserves the right to interrupt the contracted service for technical repairs and equipment maintenance and to improve the services themselves, giving customer sufficient advance notice, whenever be possible.
6.3 VIEWED cannot guarantee that the contracted services will be continuously and uninterruptedly available because of possible problems with the Internet network, breakdowns in server equipment and other unforeseeable contingencies outside VIEWED’s control. Therefore, customer expressly agrees not to bring any claim for contractual or extracontractual damages against VIEWED for any failures, slow speed or errors in access to and use of the contracted service, without prejudice to the provisions in the legislation in force.
6.4 Part of the service is provided using shared hosting resources. Because the same machine is shared with services for several customers, technical problems may occur attributable to third parties for which VIEWED accepts no liability.
6.5 Under no circumstances shall VIEWED accept liability stemming from loss of data, interruption of business or any other detriments caused by the normal operation of the products because they do not comply with customer expectations.
6.6 VIEWED shall not be held liable for:
• The content of videos and information transmitted to recipients through the services of VIEWED.
• Errors caused by access providers.
• Virus contamination in equipment which the customer is responsible for protecting.
• Third party intrusions in services that the customer has signed up for, even though VIEWED has established reasonable protection measures.
• Defective configuration by customer.
• Violation of intellectual or industrial property rights or of any other rights or legitimate interests stemming from use of the service contracted by the customer.
• Anything exclusively attributable to customer.
6.7 The contracted service has minimum terms and conditions of use. Consequently, use contrary to good faith is forbidden and in particular, by way of example but not limitation, customer may not:
• Use the service in a manner that contravenes current legislation or infringes third party rights.
• Publish or transmit any illegal, violent, abusive, xenophobic or libellous content.
• Cracks, serial numbers or any other content that infringes third party intellectual property rights.
• Collect and/or use other users’ personal data without their express consent or in breach of the provisions of Spain’s Organic Law 15/1999, of 13th December, on personal data protection.
• Use the mail server and/or email addresses for unlawful purposes (spam, mail bombing, phishing, escrowfraud, scam 419, pharming, spreading viruses or any other type of activity for the purpose of committing sabotage, fraud or criminal acts).
6.8 If VIEWED detects that a customer, without its authorisation, modifies the established campaign creation process or the code generated by it, so that videos or any other element are served by a third party unrelated to VIEWED servers, it shall immediately block that customer’s access to the Customer Area and its active campaigns and remove the customer from the service without refunding amounts not consumed and reserving the right to bring claims for damages and any other legal action to which it might be entitled.
6.9 Access and use of the contracted plans are the customer’s exclusive responsibility. Customer is fully liable for the content used in the contracted service, for the information transmitted and stored, for the hypertext links, third party claims and any legal action that may be triggered in relation to intellectual property, personality and privacy rights and the protection of minors. Customer is responsible for compliance with the laws and regulations in force, for the rules concerning operation of the contracted service, electronic commerce, copyright, maintenance of public order and universal principles of Internet use. VIEWED shall not be held directly or subsidiarily liable for any direct or indirect detriment customer may cause to third parties.
6.10 By signing up for the products or services offered by VIEWED, customer undertakes to:
• Keep the e-mail address provided on the sign-up form for communications with VIEWED operational, active and updated, because it is VIEWED’s preferred means of communication with customer. Customer may change its contact email address via authenticated access to the Customer Area. VIEWED accepts no liability whatsoever for the lack of operation of the customer’s email address, or if it is not notified of any change in address or for any misinformation alleged by customer due to customer’s own negligence over keeping said data updated.
• Conserve and diligently use the User ID and Password to access the Customer Area as these means enable VIEWED to verify authenticated access by customer or one of its authorised users. Customer is solely responsible for the use of said identifiers and their disclosure, even to third parties, and for the actions and requests made by authorised users to which it has granted the necessary permission.
7.- FORCE MAJEURE
Neither party shall be liable for breach of the obligations arising from this contract and, therefore, there shall be no right to compensation, when said breach is due to causes of Force Majeure, in accordance with current legislation. If the suspension for this circumstance is more than two months, the contract may be canceled at the request of either party.
8.1 The contract ends when, in addition to legally established grounds and those provided for in the various clauses herein, any of the following occur:
a. Mutual agreement of the parties.
b. As customer decides, provided it is up-to-date with payment of the contracted services.
c. Termination due to breach by one of the parties of the obligations hereunder.
8.2 If breach by the customer is the ground for terminating the agreement as established in clause 8.1.c, VIEWED reserves the right to early termination of the contractual relationship and therefore to deprive the customer of the contracted service without prior notification and without the customer being entitled to compensation or to the refund of any amount.
8.3 If the agreement is terminated or rescinded on the aforementioned grounds or any other lawful ground, customer shall fulfil any obligations to VIEWED and third parties assumed before these terms and conditions terminated.
9.- INTELLECTUAL AND INDUSTRIAL PROPERTY
9.1 VIEWED plans operate with a polymorphic code developed by VIEWED, registered in its name and all exploitation rights belong to VIEWED. Therefore, any copying, reproduction, assignment to third parties, diffusion or use other than that of sending the campaign for which it has been made are totally forbidden and none of the exploitation rights recognised by the current legislation on intellectual property shall be understood to be assigned to the customer, except for those strictly necessary for using video marketing and for the correct and appropriate execution of the services object of this present agreement. VIEWED agrees that it will not include in the development and execution of the services object of this agreement, any process, knowledge, information, work or technology that involves the use of any confidential information or industrial secret, industrial design, industrial or intellectual property owned by third persons for which it has not obtained the due licence or authorisation and which may result in an infringement of industrial and intellectual property rights.
VIEWED brands, commercial names and distinctive marks are owned by VIEWED Video Marketing SL and it cannot be understood that the provision of the service confers any rights over said brands, commercial names and/or distinctive marks.
9.2 Customer authorises VIEWED to use its brand or logo in commercial actions to sell VIEWED services and in particular on the VIEWED website. Customer may revoke said authorisation at any time in writing to VIEWED at the contact address which appears in this agreement. In such cases, VIEWED undertakes not to use said elements from the moment of the revocation but will not destroy material produced before then.
10.1. All the information or documentation that either party supplies to the other to develop and perform this agreement shall be considered confidential and exclusive to the party providing it and may not be disclosed to third parties without its consent.
10.2 The parties exclude from the category of confidential information any information disclosed to third parties by the holder, any which becomes public, any which must be disclosed by law or court order or imperative act from a competent authority and information obtained by a third party not under any confidentiality obligation.
10.3 This confidentiality obligation shall continue for two (2) years after this agreement has ended.
10.4 Neither party shall acquire any right over any confidential information or other property rights of the other party.
11.- PERSONAL DATA PROTECTION POLICY
11.1. Responsible for processing
VIEWED is responsible for the personal data that it obtains from the client through this contract and guarantees the protection of personal data voluntarily provided by the client, by any means, in accordance with the provisions of the European Data Protection Regulation 679/2016, from April 27 (RGPD).
11.2. Purpose of processing
The personal data of the client collected and processed by VIEWED, through this contract or other means, will be adequate, pertinent and limited to those necessary in relation to the purposes for which they are treated, in this case the purposes are:
- establish and maintain the contractual relationship that may be established, in accordance with the nature and characteristics of the service contracted and for maintaining historical data as well as for the performance of statistical tasks.
- respond to a specific request, as a response to inquiries, sending documentation and information related to the services and, in any case, commercial and/or advertising communications.
In all cases, the personal data will be maintained in a way that allows the identification of the interested party only the time necessary for the purposes of the processing.
11.3. Legitimacy of processing
The legal basis for legitimizing the processing of data by VIEWED depends on the different processing activities, the type of holders of personal data and purposes thereof. For these cases we have as basis of legitimacy the contract concluded for the provision of services.
The interested party will respond, in any case, regarding the veracity of the data provided, reserving VIEWED the right to exclude all false or illicit data, without prejudice to the other actions that proceed in Law.
VIEWED warns that, except for the existence of a legally constituted representation, no interested party may use the identity of another person and communicate their personal data. For such purposes, the interested party will be solely responsible for any damage, whether direct and/or indirect, caused to third parties or VIEWED for the use of personal data of another person, or their own personal data when they are false, erroneous, not current, inadequate or irrelevant.
The services provided by VIEWED are aimed at professionals of legal age. The use of the services offered by minors must have been previously authorized by their parents, guardians or legal representatives as they are considered responsible for the acts carried out by the minors in their charge.
VIEWED only transfers personal data to third parties to meet their contractual or legal obligations of the service, with suppliers or public or private organizations. In these cases the holder consents said assignments and in exercising their rights can be informed about them.
VIEWED communicates that in the development of its activity it uses services from suppliers to whom it communicates data (such as processing managers) with a residence outside the European Economic Area, carrying out an international data transfer. Here are the providers so their privacy policies can be checked: Google, Inc, Dropbox, Facebook, Linkedin.
11.5. User rights
The user can at all times exercise the rights recognized on their personal data, as well as the revocation of the consent for the aforementioned uses, by means of written communication with the request or right exercised addressed to VIEWED at the address given in this contract as a VIEWED address or via e-mail email@example.com , including in both cases a photocopy of your ID or other similar identification document.
The recognized rights are:
- Access. Request if this organization is processing your data.
- Rectification. Request the modification of the data if they are incorrect.
- Suppression. Request the elimination of data in legally established cases.
- Opposition. Stop processing the data, except for justified reasons.
- Limitation of the processing, they will only be conserved by the VIWOM for the exercise or the defence of claims.
- Right to the portability of the data: in case you want your data to be treated by another SUPPLIER, VIWOM will facilitate the portability of your data to the new responsible party.
If you consider that the processing of your personal data violates the regulations, you can submit a claim to the persons in charge of VIWOM or to the Spanish Agency for Data Protection, through your postal address: C/Jorge Juan, 6, CP 28001, Madrid (Spain).
11.6. Security measures
Personal information provided or collected from users is structured in files; VIWOM carries out a record of processing activities in accordance with current regulations.
In addition, for data processing VIWOM establishes the appropriate technical and organizational measures that guarantee the confidentiality, integrity, availability, resilience of the data and that are necessary to guarantee its adequate security, including protection against unauthorized or illegal processing and against loss, destruction or accidental damage, and that tend to:
- Pseudonymization and encryption of personal data.
- The ability to guarantee the confidentiality, integrity, availability and permanent resilience of the processing systems and services.
- The ability to restore availability and access to personal data quickly, in the event of a physical or technical incident.
- The process of regular verification, evaluation and assessment of the effectiveness of technical and organizational measures to ensure the safety of processing.
11.7. VIWOM acting as processing manager
VIWOM at the request of the client may have access to personal data whose responsibility and ownership belongs to the client; in these cases, VIWOM would act as the processor and, in accordance with the provisions of current regulations, it is established that:
11.7.1. Identification of the affected information and duration of processing
The client, RESPONSIBLE FOR THE processing, can make available to the PROCESSING MANAGER or VIWOM, the information described below:
- email address of your customers.
11.7.2. Obligations of the processing manager
The person in charge of the processing, and all its personnel is obliged to:
a) Use the personal data object of the processing, or those that it collects for its inclusion, only for the purpose that is the subject of that order. In no case may the data be used for your own purposes.
b) Treat the data in accordance with the instructions of the manager. If the manager considers any of the instructions to be in breach of the RGPD or any other data protection provision of the Union or of the Member States, the person in charge shall immediately inform the responsible party.
c) Keep, in writing, a record of all the categories of processing activities carried out on behalf of each manager, which contains:
- The name and contact information of the person in charge or those in charge and of each manager for which the person in charge acts and, where appropriate, the representative of the person in charge or the person in charge and the delegate of data protection.
- The processing categories carried out by each manager.
- Where appropriate, the transfer of personal data to a third country or international organization and, where appropriate, the transfers indicated in article 49, second paragraph of the RGPD, the documentation of adequate guarantees.
- A general description of the technical and organizational safety measures adopted.
d) Do not communicate data to third parties, unless you have the express authorization of the manager, in the legally admissible cases.
The person in charge can communicate data to other persons in charge of the processing of the same person in charge, according to the instructions of the manager. In this case, the person in charge will identify, in advance and in writing, the entity to which the data must be communicated, the data to be communicated and the security measures to be applied in order to proceed with the communication.
If the person in charge must transfer personal data to a third country or to an international organization, by virtue of the law of the Union or of the Member States that is applicable to him, he will inform the manager of that legal requirement in advance, unless the Law prohibits it for important reasons of public interest.
e) The person in charge is not authorized to subcontract any of the services that form part of the object of this contract and that involve the processing of personal data, except for the auxiliary services necessary for the normal functioning of the services of the person in charge.
If it is necessary to subcontract any processing other than the aforementioned, this fact must be previously communicated in writing to the person in charge, 30 days in advance, indicating the processing that are intended to subcontract and clearly and unambiguously identifying the subcontractor company and its data. The subcontracting can be carried out if the person in charge does not show his opposition within the established term.
The subcontractor, who will also have the status of person in charge of the processing, is also obliged to comply with the obligations established in this document for the person in charge of the processing and the instructions dictated by the person in charge.
It is the responsibility of the initial manager to regulate the new relationship, so that the new manager is subject to the same conditions (instructions, obligations, security measures, etc.) and with the same formal requirements as he, in relation to the proper processing of the personal data and the guarantee of the rights of the people affected.
In the case of non-compliance by the sub-manager, the initial manager will remain fully responsible to the manager for compliance with the obligations.
f) Maintain the duty of secrecy with respect to personal data to which you have had access under this order, even after the end of its purpose.
g) Guarantee that the persons authorized to process personal data expressly and in writing commit themselves to respect confidentiality and to comply with the corresponding security measures, of which they must be informed accordingly.
h) Maintain at the disposition of the responsible party the documentation proving compliance with the obligation established in the previous section.
i) Guarantee the necessary training in terms of protection of personal data of the persons authorized to process personal data.
j) Assist the manager in the response to the exercise of user rights:
- Access, rectification, deletion and opposition.
- Limitation of the processing.
- Portability of the data.
- Not subject to automated individualized decisions (including profiling).
In these cases, the person in charge of the processing will notify the person in charge by email immediately and in no case beyond the working day following the receipt of the request, together, where appropriate, with other information that may be relevant to resolve the request.
That is, the client or professional who communicates the personal data of a third party to VIWOM must adequately inform and respond to it of this obligation established in the RGPD.
k) Notification of data security violations: The person in charge of the processing will notify the manager for the processing, without undue delay, of the security breaches of the personal data in his charge that he has knowledge of, together with all the relevant information for the documentation and communication of the incident. This communication will be made by sending an email to the person in charge.
Notification will not be necessary when it is unlikely that such a breach of security constitutes a risk to the rights and freedoms of natural persons. If it is available, at least the following information will be provided:
- Description of the nature of the violation of the security of personal data, including, when possible, the categories and the approximate number of interested parties affected, and the categories and approximate number of personal data records affected.
- The name and contact information of the data protection delegate or other contact point where more information can be obtained.
- Description of the possible consequences of the violation of the security of personal data.
- Description of the measures adopted or proposed to remedy the violation of the security of personal data, including, if applicable, the measures adopted to mitigate the possible negative effects.
It is the responsibility of the data manager to communicate the data security breaches to the interested parties as soon as possible, when it is likely that the violation poses a high risk to the rights and freedoms of natural persons.
The communication must be done in clear and simple language and must, at least:
- Explain the nature of the data breach.
- Indicate the name and contact details of the data protection delegate or other contact point where more information can be obtained.
- Describe the possible consequences of the violation of the security of personal data.
- Describe the measures adopted or proposed by the data manager to remedy the violation of the security of personal data, including, if applicable, the measures adopted to mitigate the possible negative effects.
l) Give support to the data manager in carrying out the impact evaluations related to data protection, when appropriate.
m) Give support to the manager in carrying out the consultations prior to the control authority, when appropriate.
n) Provide the responsible party with all the necessary information to demonstrate compliance with their obligations, as well as for the performance of audits or inspections carried out by the person in charge or by another auditor authorized by him.
o) Implement security measures or mechanisms to:
- Guarantee the confidentiality, integrity, availability and permanent resilience of the processing systems and services.
- Restore availability and access to personal data quickly, in case of physical or technical incident.
- Verify, evaluate and assess, on a regular basis, the effectiveness of the technical and organizational measures implemented to guarantee the safety of the processing.
- Pseudonymise and encrypt personal data, if applicable.
p) Return to the manager for the processing the personal data and, if applicable, the media where they are recorded, once the service has been completed. The return must involve the total deletion of the existing data in the computer equipment used by the person in charge. However, the person in charge may keep a copy, with the data duly blocked, as long as responsibilities for the execution of the provision can be derived.
11.7.3. Obligations of the processing manager
Responsible for the processing:
- Deliver to the manager the necessary data so that he can provide the service.
- Ensure, prior to and throughout the processing, compliance with the RGPD and this contract by the person in charge.
- Supervise the processing.
Customer may not assign to third parties the rights and obligations arising under this agreement without Viwom’s prior written consent. For its part, Viwom may assign its rights, obligations or its contractual position to any company.
Viwom reserves the right to change the characteristics and conditions of its services in any way that develops and benefits them. To do so, no further formality is required other than informing the customer by online notification and/or by taking the change to the Viwom platform or to the clauses in this agreement and/or sending it by email. Without prejudice to the provisions in the above paragraph, Viwom shall provide written notification of these changes as soon as possible so the customer can adapt. Any such changes shall not affect the contracted and not consumed part of the pack.
14.-LIMITATION OF GUARANTEES AND LIABILITY
14.1 Under no circumstances shall Viwom, or its manager or senior executives, directors, shareholders, agents or workers dependent on Viwom be held liable on grounds directly or indirectly linked to customer’s use of the contracted product.
14.2 The parties recognise that the entry into force of this agreement does not mean any type of representation, delegation, guarantee or other agreement other than those expressly described herein.
If any clause in this agreement is declared entirely or partially null or without effect by any court or competent authority, the remaining clauses shall remain valid unless the parties decide at their discretion to terminate the contractual relationship.
16.- APPLICABLE LAW AND FORUM
16.1 These contractual terms and conditions are published, accepted and made available to the customer in Spanish and English as the customer chooses. Regardless of the language chosen, the legal interpretation in the event of dispute shall always be in Spanish.
16.2 In anything not contemplated in the contractual terms and conditions and in the interpretation and resolution of any disputes that may arise between the parties over said terms and conditions, Spanish law shall apply.
16.3 Should any conflict or dispute arise between the parties over the interpretation and performance of the contractual terms and conditions applicable to the customer and it is not resolved by mutual agreement, the parties submit at their choosing to resolve the dispute and waive any other forum to which they may be entitled, to the courts of the user’s registered address if the user is a consumer and in any other case to the jurisdiction and competence of the courts and tribunals of Logroño when permitted by procedural law with customer expressly waiving its entitlement to its own venue. Also, as a member of Confianza Online (Online trust) and in the terms of its ethical code, in the event of disputes over online contracting and advertising and the protection of minors, user may apply to Confianza Online’s out-of-court dispute resolution system (www.confianzaonline.es)