Definitions and interpretation
The following definitions and rules of interpretation apply to these Terms.
- Business Day: any weekday except those days on which Sound Concepts is closed for the observance of a holiday, between the hours of 8 am and 5 pm Mountain Time. The term Business Hour shall be construed accordingly.
- Business Purposes: personal data shall be processed to provide Customer with a sales automation system to easily share content to help convert contacts to customers or business builders. It includes a contact management system, action alerts, action tracking, action tools, and integration into various social media platforms. The services are further described in the Master Agreement or any other purpose specifically identified in ANNEX A.
- Data Protection Legislation: all applicable privacy and data protection laws including, but not limited to, the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation, relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC).
- Data Subject: an individual who is the subject of Personal Data.
- Effective Date: means the effective date of these Terms, being the date on which Customer accepted, or the parties otherwise agreed to, these Terms, whichever is the later.
- Personal Data: means any information relating to an identified or identifiable natural person that is processed by Sound Concepts as a result of, or in connection with, the provision of services for the Business Purposes; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
- Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
- Processing, processes, and process: either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes, or process. It includes any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Personal Data to third parties.
- Services: the provision of software as a service by Sound Concepts to enable the Customer to send marketing information to contacts and provide data analytics on the related communication under these Terms.
- Standard Contractual Clauses: the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU.
If there is a Master Agreement between Sound Concepts and Customer, this Agreement is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Capitalized terms that are used but not defined in this Agreement shall have the meanings given such terms in such Master Agreement.
The Annexes form part of these Terms and will have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the Annexes.
A reference to writing or written includes email.
In the case of conflict or ambiguity between:
- any provision contained in the body of this Agreement and any provision contained in the Annexes, the provision in the body of this Agreement will prevail;
- any of the provisions of this Agreement and the provisions of any Master Agreement, the provisions of this Agreement will prevail; and
- any of the provisions of this Agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
Personal Data types and processing purposes
The Customer and Sound Concepts acknowledge that for the purpose of the Data Protection Legislation, the Customer is the controller and Sound Concepts is the processor.
The Customer retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Sound Concepts.
ANNEX A describes the subject matter, duration, nature and purpose of processing and the Personal Data categories, and Data Subject types in respect to which Sound Concepts may process to fulfil the Business Purposes.
The Customer shall retain control of its Personal Data and remains responsible for its compliance obligations under the applicable Data Protection legislation, including providing any required notices and for having a lawful basis for the processing of the Personal Data. This responsibility shall include obtaining any required consents from data subjects. For the avoidance of doubt, the Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Legislation. The Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquires Personal Data.
Sound Concepts will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes or in accordance with the Customer's written instructions. Sound Concepts will not process the Personal Data for any other purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. Sound Concepts must promptly notify the Customer if, in its opinion, the Customer's instruction would not comply with the Data Protection Legislation.
Sound Concepts must promptly comply with any Customer request or instruction requiring Sound Concepts to amend, transfer, delete, or otherwise process the Personal Data, or to stop, mitigate, or remedy any unauthorized processing.
Sound Concepts will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Customer or these Terms specifically authorizes the disclosure or as required by law. If a law, court, regulator, or supervisory authority requires Sound Concepts to process or disclose Personal Data, Sound Concepts will first inform the Customer of the legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
Sound Concepts will reasonably assist the Customer with meeting the Customer's compliance obligations under the Data Protection Legislation, taking into account the nature of Sound Concepts' processing and the information available to Sound Concepts, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation. To the extent legally permitted, Customer shall be responsible for any costs arising from Sound Concept’s provision of the assistance under this paragraph.
Sound Concepts will ensure that all of its employees:
- are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect to the Personal Data;
- have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
- are aware both of Sound Concepts' duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
Sound Concepts will at all times implement appropriate technical and organizational measures against unauthorized or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display, or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure, or damage of Personal Data.
Sound Concepts will implement and maintain such measures to ensure a level of security appropriate to the risk involved, including, as Sound Concepts deems appropriate:
- the pseudonymisation and encryption of personal data;
- the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services;
- 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
- a process for regularly testing, assessing, and evaluating the effectiveness of security measures.
Personal Data Breach
Sound Concepts will promptly and without undue delay notify the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
Sound Concepts will as soon as reasonably practicable and without undue delay notify the Customer if it becomes aware of:
- any accidental, unauthorized or unlawful processing of the Personal Data; or
- any Personal Data Breach.
If Sound Concepts becomes aware of the matters described in clauses 7.2(a) and/or 7.2(b), it shall, without undue delay, provide the Customer with the following information:
- description of the nature of those matters, including the categories and approximate number of both Data Subjects and Personal Data records concerned;
- the likely consequences; and
- description of the measures taken, or proposed to be taken to address the matters set out in clauses 7.2(a) and/or 7.2(b), including measures to mitigate its possible adverse effects.
Immediately following any unauthorized or unlawful Personal Data processing or Personal Data Breach, the parties will coordinate with each other to investigate the matter. Sound Concepts will reasonably cooperate with the Customer in the Customer's handling of the matter, including:
- assisting with any investigation;
- providing the Customer with physical access to any facilities and operations affected to the extent doing so does not impair Sound Concepts’ ability to maintain the privacy and security of data of other customers;
- facilitating interviews with Sound Concepts' employees, former employees, and others involved in the matter;
- making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and
- taking reasonable and prompt steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach or unlawful Personal Data processing.
Sound Concepts will not inform any third party of any Personal Data Breach without first obtaining the Customer's prior written consent, except when required to do so by law.
Sound Concepts agrees that the Customer has the sole right to determine:
- whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Customer's discretion, including the contents and delivery method of the notice; and
- whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
Sound Concepts will cover all reasonable expenses associated with the performance of its (but not the Customer’s) obligations under clauses 7.2 and 7.4, unless the matter arose from the Customer's specific instructions, negligence, wilful default or breach of these Terms, in which case the Customer will cover such expenses (including those of Sound Concepts) up to the amount of 12 months licensing fees.
Subject to the provisions of clause 17, below, Sound Concepts will also reimburse the Customer for actual reasonable expenses up to the amount of 12 months of licensing fees that the Customer incurs when responding to a Personal Data Breach to the extent that Sound Concepts caused the Personal Data Breach. This reimbursement will include the costs of notices sent under clauses 7.4 and 7.6 as well as any remedy offered to affected Data Subjects, as set out in clause 7.6.
Cross-border transfers of Personal Data
Sound Concepts (or any subcontractor) will not transfer or otherwise process Personal Data outside the European Economic Area (EEA), except as set forth in clause 8.2, below.
Sound Concepts may only process, or permit the processing, of Personal Data outside the EEA under the following conditions:
- Sound Concepts is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. Sound Concepts must identify in ANNEX A or in writing to the Customer, the territory that is subject to such an adequacy finding; or
- Sound Concepts participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that Sound Concepts (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the General Data Protection Regulation ((EU) 2016/679). Sound Concepts will identify in ANNEX A, or in writing to the Customer, the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and Sound Concepts will immediately inform the Customer of any change to that status; or
- the transfer otherwise complies with the Data Protection Legislation for the reasons set out in ANNEX A.
If any Personal Data transfer between the Customer and Sound Concepts requires execution of Standard Contractual Clauses to comply with the Data Protection Legislation, the parties will complete all relevant details in, and execute Standard Contractual Clauses and take all other actions required to legitimize the transfer.
Sound Concepts may only authorize a third party (subcontractor) to process the Personal Data if:
- the Customer is provided with an opportunity to object to the appointment of each subcontractor within five Business Days after Sound Concepts supplies the Customer with full details regarding such subcontractor;
- Sound Concepts enters into a written contract with the subcontractor that contains terms substantially the same as those set out in these Terms, in particular, in relation to requiring appropriate technical and organizational data security measures, and, upon the Customer's written request, provides the Customer with copies of such contracts; and
- Sound Concepts remains responsible for its subcontractors’ performance under this Agreement;
Those subcontractors approved as of the Effective Date are as set out in ANNEX A.
If the subcontractor fails to fulfil its obligations under such written agreement and subject to clause 17, Sound Concepts remains fully liable to the Customer for the subcontractor's performance of its contractual obligations.
Customer agrees that any request to audit Sound Concepts’ subcontractors may be satisfied by presenting up-to-date audit reports, other reports, certifications, attestations, or extracts confirming the subcontractor’s or subcontractors’ compliance from independent persons or entities. Customer hereby designates any such independent persons or entities as its sole auditor or auditors for purposes of Article 28 of the GDPR.
Complaints, data subject requests and third party rights
Sound Concepts will, at no additional cost, undertake such measures as may be appropriate and promptly provide such information to the Customer as the Customer may reasonably require to enable the Customer to comply with:
- the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase Personal Data, object to the processing and automated processing of Personal Data, and restrict the processing of Personal Data; and
- information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation.
Sound Concepts will notify the Customer immediately if it receives any complaint, notice, or communication that relates directly or indirectly to the processing of the Customer’s Personal Data or to either Sound Concepts or Customer’s compliance with the Data Protection Legislation.
Sound Concepts must notify the Customer within five Business Days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.
Sound Concepts will give the Customer its full cooperation and assistance in responding to any complaint, notice, communication, or Data Subject request.
Sound Concepts must not disclose the Personal Data to any Data Subject or to a third party unless the disclosure is either at the Customer's request or instruction, permitted by this Agreement, or is otherwise required by law.
Term and termination
These Terms will take effect on the Effective Date and, notwithstanding expiration of the Term or termination of this Agreement, will remain in effect as long as Sound Concepts holds any of Customer’s Personal Data.
This Agreement will remain in full force and effect from the Effective Date so long as:
- the Master Agreement, if any, remains in effect, or
- Sound Concepts retains any Personal Data related to Customer’s Business Purposes in its possession or control (Term).
Any provision of these Terms that expressly or by implication should come into or continue in force on or after termination of any Master Agreement to protect Personal Data will remain in full force and effect after such termination.
If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its obligations under Master Agreement or from fulfilling the Business Purposes, the parties will suspend the processing of Personal Data until that processing can be brought into compliance with the new requirements. If either party is unable to bring the Personal Data processing into compliance with the Data Protection Legislation within thirty days thereafter, the other party may terminate any Master Agreement on written notice to the other.
Data return and destruction
At the Customer's request, Sound Concepts will give the Customer a copy of or access to all or part of the Customer's Personal Data in its possession or control in the format and on the media reasonably selected by the Customer.
On termination or expiration of any Master Agreement or, if directed in writing by the Customer for any reason, Sound Concepts will securely delete or destroy, return, and not retain, any Personal Data related to these Terms in its possession or control, except for one copy that it may retain and use for up to twelve months for audit purposes only or any other lawful reason.
If any law, regulation, or government or regulatory body requires Sound Concepts to retain any documents or materials that Sound Concepts would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement. The notification shall give details of the documents or materials that Sound Concepts must retain, the legal basis for retention, and establish a specific timeline for destruction once the retention requirement ends.
If Customer requests, Sound Concepts will verify in writing that it has destroyed the Personal Data within five Business Days after it completes the destruction.
Sound Concepts will keep detailed, accurate, and up-to-date records regarding any processing of Personal Data it carries out for the Customer. This shall include maintaining a list of approved subcontractors, the processing purposes, categories of processing, any transfers of Personal Data to a third country and related safeguards, and a general description of the technical and organizational security measures referred to in clause 6.1 (Records).
Sound Concepts will ensure that its Records are sufficient to enable the Customer to verify Sound Concepts' compliance with its obligations under these Terms and Sound Concepts will provide the Customer with a copy of the Records upon request.
On at least 30 days’ notice, Sound Concepts will allow Customer (or Customer’s selected auditor) to audit its compliance with this Agreement and provide Customer all reasonably necessary assistance to conduct such audit to the extent that such audit and assistance does not compromise the security or privacy of other customers’ information. Sound Concepts may charge a fee to cover expenses it incurs to cooperate with the audit.
The notice requirements in clause 14.1 will not apply if the Customer reasonably believes that a Personal Data Breach occurred or is occurring, or Sound Concepts is in breach of any of its obligations under these Terms or any Data Protection Legislation.
If a Personal Data Breach occurs or is occurring, or Sound Concepts becomes aware of a breach of any of its obligations under these Terms or any Data Protection Legislation, Sound Concepts will:
- promptly and within two Business Days of the triggering event, conduct its own audit to determine the cause;
- produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;
- provide the Customer with a copy of the written audit report; and
- where reasonably possible, remedy any deficiencies identified by the audit within five Business Days.
Sound Concepts warrants and represents that, considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage;
- the nature of the Personal Data protected; and
- comply with all applicable Data Protection Legislation and its information and security policies, including the security measures required in clause 6.1.
The Customer warrants and represents that Sound Concepts' expected use of the Personal Data for the Business Purposes will comply with the Data Protection Legislation. In particular, Customer warrants and represents that it will have a lawful basis for processing all Personal Data that is consistent with the Data Privacy Legislation.
Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under these Terms.
The Customer acknowledges that Sound Concepts is reliant on the Customer for direction as to the extent to which Sound Concepts is entitled to use and process the Personal Data. Consequently, the Customer agrees to indemnify and hold Sound Concepts harmless from any losses, including legal fees and expenses, or arising from any claim brought by a Data Subject for any action or omission by Sound Concepts resulting from the Customer’s instructions.
Sound Concepts’ liability under or in connection with these Terms, and including under any Standard Contractual Clauses entered into in connection with these Terms or the Master Agreement, is subject to the limitations on liability contained in any Master Agreement between Sound Concepts and the Customer.
Any notice or other communication given by the Customer to Sound Concepts in connection with these Terms must be in writing and delivered to:
Privacy Officer, Sound Concepts, Inc., 782 S Auto Mall Drive Suite A American Fork, UT 84003
No communication sent via electronic mail shall be considered a valid or effective notice under this Agreement unless a written copy of such communication is delivered as set forth in this Clause.
Clause 18.1 shall not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Third Party Rights
No third parties are intended beneficiaries of this Agreement. Accordingly, no third parties have standing to enforce the terms of this Agreement or seek any remedy for breach of this Agreement.
If there is a Master Agreement between Sounds Concepts and Customer, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed as set forth in the Master Agreement. Otherwise, this Agreement will be governed by the laws of the State of Utah. Any formal legal action regarding or in any way relating to the subject matter of this Agreement may be brought only in a state or federal court within the State of Utah. Customer and Sound Concepts hereby consent to the personal jurisdiction of any such court.
Personal Data Processing Purposes and Details
Subject matter of processing:
Sound Concepts’ provision of the Services and related technical support to the Customer
Duration of Processing:
Sound Concepts will process data for the Term plus the period from expiration of such Term until deletion of all Personal Data by Sound Concepts in accordance with these Terms and the Master Agreement.
Nature and Purpose of Processing:
Sound Concepts will process Customer Personal Data submitted, stored, sent or received by the Customer via the Services for the purposes of providing the Services and related technical support to the Customer in accordance with these Terms.
Personal Data Categories:
Personal Data submitted, stored, sent or received by the Customer in connection with the Services, which may include the following categories of data: names, addresses, telephone numbers, email addresses, opt-in designation, lead capture results, area of focus preference, hot/cold designation, notes, tags/folder designation, user share actions to contacts, contact actions with platform and interest level rating
Data Subject Types:
Customer’s clients, contacts and prospective clients.
Sound Concepts' legal basis for processing Personal Data outside the EEA in order to comply with cross-border transfer restrictions:
- Located in a country with a current determination of adequacy: United States of America.
- Standard Contractual Clauses between Customer as "data exporter" and Provider as "data importer".
- EU-US Privacy Shield Certified.
The technical and organizational security measures that Sound Concepts shall implement shall include commercially reasonable measures to:
- ensure that physical access to data storage hardware containing Personal Data is limited to authorized personnel;
- implement system access controls to limit access to Personal Data to authorized personnel and users;
- implement an effective system of periodic backup that includes Personal Data;
- ensure that, to the extent systems containing Personal Data are remotely managed, such management occurs over an encrypted communication channel;
- implement an appropriate authentication scheme, which may include passwords, biometrics, and other authentication factors that are commercially reasonable to ensure the effectiveness of system access controls; and
- implement appropriate safeguards against malware.