Data Processing Addendum

This Swell Data Processing Addendum (“Addendum”) amends the Swell Terms of Service for Software as a Service Subscription, as applicable (the “Agreement”), by and between you acting as Swell’s Customer under the Agreement (“you”) and Swell Commerce Corp., a Delaware corporation with offices at 44 Montgomery Street, San Francisco, CA 94104 (“Swell”).

1. DEFINITIONS

1.aData Protection Legislation” means European Union Regulation 2016/679 (the “General Data Protection Regulation”) or California Civil Code Section 1798.100-1798.199 (the “California Consumer Privacy Act of 2018”), as applicable, and any legislation and/or regulation implementing or made pursuant to it, or which amends or replaces any of it;

1.bData Processor”, “Data Controller”, “Data Subject”, “Processing”, “Subprocessor”, and “Supervisory Authority” shall be interpreted in accordance with the General Data Protection Regulation;

1.cService Provider” shall be interpreted in accordance with the California Consumer Privacy Act of 2018;

1.dPersonal Data” as used in this Addendum means information that relates to, or could reasonably be linked with, to an identifiable or identified Data Subject who visits or engages in transactions through your Store(s) (each, an “End User”), which Swell processes as a Data Processor or Service Provider in the course of providing you with the SaaS Services;

1.eData Subject Request” as used in this Addendum means a request for access, erasure, rectification, or portability of your End User’s Personal Data; and

1.f All other capitalized terms in this Addendum shall have the same definition as in the Agreement.

2. DATA PROTECTION

2.a Where a Data Subject is located in the European Economic Area, such Data Subject’s Personal Data will be processed by Swell in the United States of America and may be transferred to other regions. Such transfers will be completed in compliance with the applicable Data Protection Legislation.

2.b You understand and agree that you are acting as a Data Controller with respect to all Personal Data you input or upload to the Swell Platform in the course of using the SaaS Services and will observe all applicable Data Protection Legislation with respect to your collection and use of Personal Data.

2.c When Swell processes Personal Data in the course of providing the SaaS Services, Swell will:

  1. process the Personal Data as a Data Processor or Sub-Processor and/or Service Provider, only for the purpose of providing the SaaS Services in 1 accordance with documented instructions from you (provided that such instructions are commensurate with the functionalities of the SaaS Services), and as may subsequently be agreed to by you. If Swell is required by applicable law to process the Personal Data for any other purpose, Swell will provide you with prior notice of this requirement,
  2. notify you if, in Swell’s opinion, your instruction for the processing of Personal Data infringes applicable Data Protection Legislation;
  3. notify you promptly, to the extent permitted by law, upon receiving an inquiry or complaint from a Supervisory Authority relating to Swell’s processing of the Personal Data;
  4. implement reasonable technical and organizational measures enabling you to execute Data Subject Requests that you are obligated to fulfill;
  5. implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of Personal Data and appropriate to the nature of the Personal Data which is to be protected;
  6. notify you without undue delay upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data;
  7. ensure that Swell’s personnel who access the Personal Data are subject to confidentiality duties or obligations that restrict their ability to disclose the End User’s Personal Data; and
  8. upon termination or expiration of the Agreement, Swell will promptly initiate its purge process to delete or anonymize the Personal Data in its possession and control. If you request a copy of such Personal Data within 30 days of termination, Swell will provide you with a copy of such Personal Data.

2.d With respect to the SaaS Services, you acknowledge and agree that Swell may use sub-processors to process the Personal Data. Swell’s use of any specific sub-processor to process the Personal Data will be in compliance with the applicable Data Protection Legislation and must be governed by a contract between Swell and sub-processor that requires comparable protections to this Data Processing Addendum. A current list of sub-processors (other than general infrastructure providers, such as vendors and lessors of computer hardware, software, servers, networks and hosting and internet access services – which will not be deemed sub-processors for the purposes of this Data Processing Addendum) may be found online at: http://swell.is/. If you object to the appointment of any sub-processor, you may terminate the Agreement by giving us a 30-day advance written notice specifying the nature of your objection and the name of the sub-processor.

3. MISCELLANEOUS

3.a In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail.

3.b For avoidance of doubt and to the extent allowed by applicable law, any and all Swell’s liability under this Addendum, including limitations thereof, will be governed by the relevant provisions of the Agreement. You acknowledge and agree that Swell may amend this Addendum from time to time by posting the relevant amended and restated Addendum on Swell’s website, available at http://swell.is/ and such amendments to the Addendum are effective as of the date of posting. Your continued use of the SaaS Services after the amended Addendum is posted to Swell’s website constitutes your agreement to, and acceptance of, the amended Addendum. If you do not agree to any changes to the Addendum, do not continue to use the SaaS Services.

3.c Save as specifically modified and amended in this Addendum, all of the terms, provisions and requirements contained in the Agreement shall remain in full force and effect and govern this Addendum. If any provision of the Addendum is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Addendum shall remain operative and binding on the parties.

3.d The terms of this Addendum shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without regard to principles of conflicts of laws. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE SAN FRANCISCO COUNTY, STATE OF CALIFORNIA WITH RESPECT TO ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS ADDENDUM AND WAIVE ALL RIGHTS TO A JURY TRIAL.

Swell uses the following sub-processors for customer data.

Sub-processor Service provided Corporate headquarters
Amazon Web Services, Inc Cloud hosting USA
Cloudflare, Inc. Load balancing and DDoS protection USA
DigitalOcean, LLC Cloud hosting USA
Google Maps Mapping delivery USA
Google Cloud Platform Cloud hosting USA
Intercom, Inc. Customer support USA
Slack Technologies, Inc. Internal communications USA
SolarWinds Worldwide, LLC System logging USA
Twilio Inc. Email transmission USA
Hubspot, Inc. Customer relationship management USA