Effective date: September 01, 2023

This Flamingo Cricket Club (FCC) Data Processing Addendum (this "DPA") forms part of, and is subject to the provisions of, the Agreement. This DPA will apply to the extent Customer is subject to relevant Data Protection Laws.

1. Definitions

Capitalized terms that are used but not defined in this DPA have the meanings given to them in the Agreement.

1.1. “Affiliate” means an entity that directly or indirectly controls (e.g., subsidiary), is controlled by (e.g., parent), or is under common control with (e.g., sibling) such party; and the term “control” (including the terms “controlled by” and “under common control with”) means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.

1.2. “Agreement” means any services agreement including, but not limited to, FCC’s Terms of Service, a Master Subscription Agreement, or other services agreement between FCC and Customer under which the Service is provided by FCC to Customer.

1.3. “Authorized Affiliate” means Customer's Affiliate(s) which (a) are subject to Data Protection Laws; (b) are permitted to use the Service pursuant to the Agreement between Customer and FCC; and (c) have not signed their own Agreement with FCC and are not "Customers" as defined under this DPA.

1.4. “Controller” means the entity that determines the purposes and means of the Processing of Personal Information.

1.5. “Customer” means the entity and the entity’s Authorized Affiliates that agree to be bound by the Agreement and this DPA.

1.6. “Customer Account Data” means Personal Information that relates to Customer’s relationship with FCC, including the names or contact information of the business point(s) of contact between Customer and FCC, individuals, Customer billing information, and customer relationship management information.

1.7. “Customer Workforce” means any Data Subjects who are employees, contractors, representatives, or other individuals engaged by Customer who have access to the Service via a user account.

1.8. “Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer’s Personal Information transmitted, stored, or otherwise Processed.

1.9. “Data Protection Laws” means all applicable laws and regulations applicable to FCC’s processing of Personal Information under the Agreement, including GDPR, all as amended or replaced from time to time.

1.10. “Data Subject” means an individual whose Personal Information is subject to Data Protection Laws.

1.11. “EEA” means the European Economic Area.

1.12. “End User” means any Data Subject accessing or otherwise using Customer’s Website Content.

1.13. “EU Standard Contractual Clauses” or “EU SCCs” means the annex found in the European Commission decision of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (available as of August 1, 2021 at data.europa.eu/eli/dec_impl/2021/914/oj) and any amendments, replacements, or updated standard contractual clauses as recognized and approved by the European Commission from time to time.

1.14. “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

1.15. “Personal Information” means any information relating to a Data Subject.

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

1.17. “Processor” means the entity which Processes Personal Information on behalf of the Controller.

1.18. “Regulator” means any supervisory authority with authority under Data Protection Laws over all or any part of the provision or receipt of the Service or the Processing of Personal Information.

1.19. “Service” means the access to FCC’s software-as-a-service platform and the related web design technology products and services as subscribed to by Customer.

1.20. “Subprocessor” means any Processor engaged by FCC to Process Personal Information on behalf of FCC.

1.21. “Website Content” means any content that Customer submits, posts, displays, or otherwise makes available on or via the Service

2. Relationship of the Parties

2.1. FCC as a Processor. The Parties hereby agree that with regard to the processing of Customer Personal Information, Customer may act either as a Controller or Processor and FCC is a Processor for all Customer Personal Information except for Customer Account Data as set forth in Section 2.2 (FCC as a Controller of Customer Account Data). FCC will process Customer Personal Information in accordance with Customer’s instructions as set forth in Section 3.1 (Instructions).

2.2. FCC as a Controller of Customer Account Data. The parties hereby agree that, with regard to the processing of Customer Account Data, FCC is an independent Controller, not a joint Controller with Customer. FCC will process Customer Account Data as a Controller: (a) to manage the relationship with Customer; (b) to carry out FCC’s core business operations, such as accounting and filing taxes; (c) to detect, prevent, or investigate Data Breaches, fraud, and other abuse or misuse of the Service; (d) to comply with applicable law; and (e) as otherwise permitted under Data Protection Law and in accordance with this DPA, the Agreement, and FCC’s Privacy policy.

3. Customer Obligations

3.1. Instructions. Customer instructs FCC, when acting as a Processor, to Process Customer Personal Information to provide the Service. Customer warrants that the instructions it provides to FCC pursuant to this DPA will comply with Data Protection Laws.

3.2. Data Subject and Regulator Requests. Customer shall be responsible for communications and leading any efforts to comply with all requests made by Data Subjects under Data Protection Laws and all communications from Regulators that relate to the Personal Information, in accordance with Data Protection Laws. To the extent such requests or communications require FCC’s assistance, Customer shall immediately notify FCC in writing of the Data Subject’s or Regulator’s request.

3.3. Notice, Consent, and Other Authorizations. Customer agrees that the Personal Information it collects shall be in accordance with Data Protection Laws, including all legally required consents, bases of processing, approvals, and authorizations. Upon FCC’s request, Customer shall provide all information necessary to demonstrate compliance with these requirements.

‍

4. FCC’s Obligations as a Processor

4.1. Scope of Processing and Customer Instructions. FCC will Process the Personal Information on documented instructions from Customer in such manner as is necessary for the provision of the Service under the Agreement, except as may be required to comply with any legal obligation to which FCC is subject.

4.2. Lawfulness of Instructions. FCC may make reasonable effort to inform Customer if, in its opinion, the execution of an instruction relating to the Processing of Personal Information could infringe on any Data Protection Laws. In the event FCC must Process or cease Processing Personal Information for the purpose of complying with a legal obligation, FCC will inform the Customer of that legal requirement before Processing or ceasing to Process, unless prohibited by the law.

4.3. FCC Personnel Confidentiality Obligations. FCC will grant access to Customer Personal Information to its personnel only to the extent strictly necessary for implementing, managing and monitoring the Service. FCC shall ensure that personnel authorized to Process Customer Personal Information have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

4.4. Security of Processing. FCC shall implement appropriate technical and organizational measures to ensure the security of Personal Information including protection against a Data Breach. In complying with its obligations under this paragraph, FCC shall implement the technical and organizational measures specified in Schedule II.

4.5. Data Breach Notification. FCC shall notify Customer without undue delay in the event of a confirmed Data Breach.

4.6. GDPR Articles 32-36. Taking into account the nature of the Processing and the information available to FCC, FCC will provide reasonable assistance to Customer in complying with its obligations under GDPR Articles 32-36, which address obligations with regard to security, breach notifications, data protection impact assessments, and prior consultation.

4.7. Fulfillment of Data Subject Requests. FCC shall promptly notify Customer of any request it has received from a Data Subject. FCC shall not respond to the request itself, unless authorized to do so by Customer. FCC shall provide reasonable assistance to Customer in fulfilling its obligations to respond to Data Subject requests to exercise their rights under Data Protection Laws.

4.8. Deletion or Return of Personal Information. Following termination of the Agreement, FCC shall, at the choice of Customer, delete or return all Customer Personal Information processed on its behalf unless such continued processing is otherwise required by applicable law or regulations.

4.9. Compliance Documentation. FCC shall make available to Customer all information necessary to demonstrate compliance with GDPR. At Customer’s request, FCC shall also permit and contribute to audits in the manner prescribed in Section 6 of this DPA (Audit).

4.10. Disclosure to Third Parties. Except as expressly provided in this DPA, FCC will not disclose Customer Personal Information to any third party without Customer’s consent. If requested or required by a competent governmental authority to disclose Customer Personal Information, to the extent legally permissible and practicable, FCC will provide Customer with sufficient prior written notice in order to permit Customer the opportunity to oppose any such disclosure.

5. Use of Subprocessors

Customer hereby agrees and gives its general authorization for FCC, when acting as a Processor, to engage new Subprocessors in connection with the processing of Customer Personal Information. A list of FCC’s current Subprocessors is available subprocessors. Customer must request to receive email notifications concerning the addition of new Subprocessors. Customer may reasonably object to the addition of any new Subprocessor within 15 calendar days of receiving such email notification, in which case FCC will use reasonable efforts to make a change in the Service or recommend a commercially reasonable change to avoid processing by such Subprocessor. If FCC is unable to provide an alternative, Customer may terminate the Service and shall pay FCC any fees or expenses not yet paid for all services provided pursuant to any Agreement. If Customer fails to sign up for these email notifications, Customer shall be deemed to have waived its right to object to the newly added Subprocessor(s).

6. Audit

6.1. Scope. FCC will maintain records of its Processing activities carried out on behalf of Customer and will make available to Customer the information reasonably necessary to demonstrate its compliance with the obligations set out in this DPA. FCC may limit the scope of information made available to Customer if Customer is a FCC competitor, provided that such limitation does not violate Data Protection Laws or the EU Standard Contractual Clauses. Customer’s inspection rights under this DPA do not extend to FCC’s employee payroll, personnel records or any portions of its sites, books, documents, records, or other information that do not relate to the Service or to the extent they pertain to third parties.

6.2. Process. Subject to thirty (30) days’ prior written notice from Customer and at the Customer's additional expense (including all reasonable costs and fees for any and all time FCC expends on such audit, in addition to the rates for services performed by FCC), FCC and Customer shall mutually agree to appoint a third-party auditor to verify that FCC is in compliance with the obligations under this DPA. In no event shall the Parties agree to a third-party auditor that is a competitor to FCC. Audits and inspections will be carried out at mutually agreed times during regular business hours. Customer shall be entitled to exercise this audit right no more than once every twelve (12) months. Customer shall not be entitled to an on-site audit of FCC’s premises unless legally required by a Regulator.

6.3. Confidentiality. All information obtained during any such request for information or audit will be considered FCC’s Confidential Information under the Agreement and this DPA. The results of the inspection and all information reviewed during such inspection will be deemed FCC’s Confidential Information. The third party auditor may only disclose to Customer specific violations of this DPA, if any, and the basis for such findings, and shall not disclose any of the records or information reviewed during the inspection.

‍

7. Transfers Outside of EEA, UK, and Switzerland

To the extent Customer’s use of the Service requires an onward transfer mechanism to lawfully transfer Personal Information from the European Economic Area, the United Kingdom, or Switzerland to a country or territory which has not been formally recognized by the European Commission as affording the Personal Information an adequate level of protection, Customer hereby acknowledges, agrees, and instructs FCC to transfer Customer Personal Information as set forth in Schedule 3 (Cross Border Transfers) of this DPA.

If Schedule 3 applies to Customer’s use of the Service, then, if applicable, under the order of precedence, by entering into this DPA, the Parties are deemed to be signing such EU Standard Contractual Clauses, including each of its applicable Annexes.

8. Jurisdiction Specific Terms

To the extent FCC processes Personal Information originating from and protected by Data Protection Laws in one of the jurisdictions listed in Schedule 5 (Jurisdiction Specific Terms), the terms specified in Schedule 5, with respect to the applicable jurisdiction(s), will apply.

9. Obligations Post-Termination

Termination or expiration of this DPA shall not discharge the Parties from their obligations that by their nature may reasonably be deemed to survive the termination or expiration of this DPA.

10. Limitation of Liability

This DPA shall be subject to the limitations of liability agreed between Customer and FCC in the Agreement and such limitation shall apply in aggregate for all claims under the Agreement and DPA.

11. Severability

Any provision of this DPA that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Parties will attempt in good faith to agree upon a valid and enforceable provision that is a reasonable substitute and shall incorporate such substitute provision into this Agreement.

‍

12. Updates

FCC may update the terms of the DPA from time to time; provided, however, FCC will provide Customer reasonable written notice to Customer when FCC makes a material update to the DPA.

‍

SCHEDULE 1

Description of Transfer and Processing

A. List of Parties

Data exporter:Name: Customer, user of the Service.
Contact Details: Specified in the signature block above.Activities relevant to the data transfer: Use of the Service.Role: Controller and/or Processor depending on the type of processing as set forth below.

‍

Data importer:Name: FCC, provider of the Service._Contact Details: 411 W Monroe St, Mailbox #2, Austin, TX 78704. Activities relevant to the data transfer: Provisioning of the Service.Role: Controller and/or Processor depending on the type of processing as set forth below.

‍

B. Description of Transfer

Categories of data subjects whose personal data is transferred:

Module One (Controller to Controller):

• Data Subjects whose Personal Information constitutes Customer Account Data.

Module Two (Controller to Processor) and Module Three (Processor to Processor):

• End Users; and
• Customer Workforce.

Categories of personal data transferred:

Module One (Controller to Controller):

• Customer Account Data including, business point of contact: name, email address, phone number, credit card and/or other billing information.

Module Two (Controller to Processor) and Module Three (Processor to Processor):

• Personal Information about End Users and Customer Workforce that Customer provides to the Service or through an End User’s interaction with the Service including, but not limited to, name, email addresses, and other Personal Information as determined by Customer;
• Personal Information from add-ons and other third-party services Customer uses in conjunction with the Service; and
• Data about Customer, Customer’s Workforce, and End Users' use of the Service, including, but not limited to, interactions with the user interface to the Service, web browser or operating system details, and the internet protocol address for the computers with which Customer, Customer’s Workforce, and End Users use to connect to the Service.‍

Sensitive data transferred (if applicable):

Module One (Controller to Controller):

• None.

Module Two (Controller to Processor) and Module Three (Processor to Processor):

• End Users may submit special categories of Personal Information to the Customer via the Service, the extent of which is determined and controlled by the Customer. For clarity, these special categories of Personal Information may include information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, biometric data, health data, or data concerning a natural person’s sex life or sexual orientation.
• Any sensitive data that Customer may submit to FCC is stored in a single database location with heavily restricted access.

Frequency of the transfer:

Module One (Controller to Controller), Module Two (Controller to Processor), and Module Three (Processor to Processor):

• Continuous.

Purposes of the data transfer and further processing:

Module One (Controller to Controller), Module Two (Controller to Processor), and Module Three (Processor to Processor):

• FCC will process Customer Account Data and Customer Personal Information for the purpose of providing the Service described in the Agreement. Customer determines the specific processing activities using the Service are within the but these activities are anticipated to include receiving, storing, displaying, and erasing Personal Information.

The period for which the personal data will be retained:

Module One (Controller to Controller):

• FCC will retain Customer Account Data during the term of the Agreement and thereafter in accordance with the principles of ‘purpose limitation’ and ‘storage limitation.’ FCC may retain Customer Account Data as required by applicable law and regulations to comply with its legal obligations.

Module Two (Controller to Processor), and Module Three (Processor to Processor):

• Customer Personal Information will be retained during the term of the Agreement. Upon the termination of the Agreement, FCC will delete all Personal Information processed on behalf of Customer unless local laws, regulations, or other requirements applicable to FCC prohibit the deletion of the Personal Information.

Subject matter, nature, and duration of the processing by sub-processors:

Module One (Controller to Controller), Module Two (Controller to Processor), and Module Three (Processor to Processor):

• A list of FCC’s current Subprocessors and the subject matter of the subprocessing can be found here. FCC’s Subprocessors Process Personal Information for the term of the agreement between the Subprocessor and FCC.

C. Competent Supervisory Authority

Module One (Controller to Controller), Module Two (Controller to Processor), and Module Three (Processor to Processor):

• Ireland’s Data Protection Commissioner.‍

SCHEDULE 2

Technical and Organisational Measures Including Technical and Organisational Measures to Ensure the Security of the Data

FCC has a SOC 2 Type II certification and is dedicated to the continued validation of its security program. Specifically, FCC implements the following security measures with respect to Personal Information:

Data Center Security

• FCC infrastructure is managed via Amazon Web Services’ ISO 27001 certified data centers, and hosted in multiple regions and availability zones.
• All database servers are isolated inside virtual private networks, and accessible only by key personnel via multi-factor authentication.
• All access to production environments is logged, and access can be immediately revoked.

Protection from Data Loss and Corruption

• All data operations are mirrored to a redundant secondary database.
• All data is backed up on a daily basis and stored on highly-redundant storage media in multiple availability zones.
• All data is encrypted at rest using Amazon’s EBS encryption functionality

Application Level Security

• User account passwords are hashed using a secure low-entropy key derivation function, which protects against brute-force attacks.
• All applications are served exclusively via TLS with a modern configuration.
• All login pages have brute-force logging and protection.
• Two-factor authentication is supported and is mandatory for all internal administrator functions of the application.
• All code changes to our applications require code reviews via an enforced code review process.
• Automated code and dependency analysis tools are in place to identify emergent security issues.
• Regular application security penetration tests are conducted by different vendors. These tests include high-level server penetration tests across various parts of our platform (i.e. Dashboard, Designer, Editor, Hosted Sites), as well as security-focused source code reviews.

Internal Protocol & Training

• All new employees are given security and data privacy training, tailored to their job functions.
• All employees undergo regular security best practices and data privacy training.
• All developers undergo advanced application security and privacy training.
• All new product changes and improvements undergo a data privacy assessment before proceeding to implementation.‍
• Subprocessor Controls
• FCC only uses software providers that have confirmed they have implemented and maintain Security Measures in compliance with Article 32 of the GDPR, in storing and keeping secure Personal Information.

Technical and Organisational Measures to provide assistance to the Controller

• FCC has a dedicated security and privacy team to respond to Controller requests and inquiries. Taking into account the nature of the Processing and to the extent reasonably possible, FCC will assist Controller in fulfilling its obligations in relation to Data Subject requests and compliance obligations under applicable Data Protection Laws. This team can be contacted at mail@flamingocricket.club.
• FCC will not disclose Personal Information to any third party without Customer’s consent. If requested or required by a competent governmental authority to disclose the Personal Information, to the extent legally permissible and practicable, FCC will provide Customer with sufficient prior written notice in order to permit Customer the opportunity to oppose any such disclosure.

‍

SCHEDULE 3

Cross Border Data Transfers

1.1 Order of Precedence. In the event the Service is covered by more than one Transfer Mechanism, the transfer of Personal Information will be subject to a single Transfer Mechanism in accordance with the following order of precedence: (a) Any valid successor to the EU-US and Swiss-US Privacy Shield Framework, including the Trans-Atlantic Data Privacy Framework, if enacted, provided FCC is certified under the new framework; (b) the EU Standard Contractual Clauses as set forth in Section 1.2 (EU Standard Contractual Clauses) of this Schedule 3; (c) the UK International Data Transfer Agreement as set forth in Section 1.3 (UK International Data Transfer Agreement) of this Schedule 3; and, if neither (a) nor (b) nor (c) is applicable, then (d) other applicable data Transfer Mechanisms permitted under Data Protection Law.

‍1.2 EU Standard Contractual Clauses. The parties agree that the EU Standard Contractual Clauses will apply to Personal Information that is transferred via the Service from the EEA or Switzerland, either directly or via onward transfer, to any country or recipient outside the EEA or Switzerland that is: (a) 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 Information. _For data transfers from the EEA that are subject to the EU Standard Contractual Clauses, the EU Standard Contractual Clauses will be deemed entered into (and incorporated into this DPA by this reference) and completed as follows:  

(a) Module One (Controller to Controller) of the EU Standard Contractual Clauses will apply where FCC is processing Customer Account Data;

(b) Module Two (Controller to Processor) of the EU Standard Contractual Clauses will apply where Customer is a Controller of Customer Personal Information and FCC is processing Customer Personal Information;

(c) Module Three (Processor to Processor) of the EU Standard Contractual Clauses will apply where Customer is a Processor of Customer Personal Information and FCC is processing Customer Personal Information;

(d) For each Module, where applicable:

1. Clause 7: The optional docking clause will not apply;
2. Clause 9: Option 2 will apply and the time period for prior written notice of subprocessor changes will be as set forth in Section 5 (Use of Subprocessors) of the DPA;
3. Clause 11: The optional language will not apply;
4. Clause 17: the EU Standard Contractual Clauses will be governed by the laws of Ireland;
5. Clause 18: the EU Standard Contractual Clauses disputes will be resolved before the courts of Ireland.

(e) Schedule 1 of this DPA serves as Annex I of the EU Standard Contractual Clauses

(f) Schedule 2 (Technical and Organizational Security Measures) of this DPA serves as Annex II of the EU Standard Contractual Clauses.

1.3 UK International Data Transfer Agreement. The parties agree that the UK International Data Transfer Agreement will apply to Personal Information that is transferred via the Service from the United Kingdom, either directly or via onward transfer, to any country or recipient outside of the United Kingdom that is: (a) not recognized by the competent United Kingdom Regulator or governmental body for the United Kingdom as providing an adequate level of protection for Personal Information. For data transfers from the United Kingdom that are subject to the UK International Data Transfer Agreement, the UK International Data Transfer Agreement will be deemed entered into (and incorporated into this DPA by this reference) and completed as set forth in Schedule 4.

SCHEDULE 4

UK International Data Transfer Agreement

‍If applicable, this UK Addendum to the EU Standard Contractual Clauses International Transfer Agreement (“Addendum”) has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract

Part 1: Tables

Table 1: Parties

Start date

The Effective Date of the Agreement

The Parties

Exporter (who sends the Restricted Transfer)

Importer (who receives the Restricted Transfer)

Parties' details

Customer

Full legal name: Flamingo Cricket Club

Main address: 411 W Monroe St, Mailbox #2, Austin, TX 78704