1. Types of Information Stored and Transmitted
The Service is owned by Black Pearl Mail Limited (“BPM”). BPM operate an outbound email management and branding service (“The Service”). Types of information stored and/or transmitted include:
1.1. Company and User Details. Information about Customers (including but not limited to address, phone number, contact persons), End-Users (including but not limited to contact information, job title), Branding Features, email recipient delivery details and delivery information are stored in Service databases so that the Service can apply html formatting to outbound emails that are sent and management information to Customer.
1.2. Financial Information. Financial information that is collected is used to verify, identity and to bill Customer for the Service as applicable.
1.3. Email content. CONTENT OF DELIVERED EMAIL IS NOT STORED OR RETAINED BY BPM. Undeliverable email is stored by BPM for a maximum of 6 hours while in a re-sending cycle before it is deleted.
1.4. Demographic and profile data. Demographic and profile data may be collected by BPM to tailor BPM web site, Admin Console, Help Centre or any requested email communications, and to display information that is more relevant to Customer.
1.5. Google Analytics Advertiser Features. BPM uses Google Analytics in conjunction with their Re-targeting function. First party cookies are only used for this function outside of the BPM application.
2. Ownership of Data
As per Section 7.3 of terms and Conditions Agreement BPM acknowledges that the Customer owns Customer Data.
3. Retrieval of Data
Customer can access, modify and delete Customer Data via Admin Console. If the service is Terminated BPM will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at BPM’s then-current rates for the applicable Services. After a commercially reasonable period of time, BPM will delete Customer Data by removing pointers to it on BPM’s active servers and overwriting it over time; and upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information, if any.
4. Confidential Nature of Customer Data
4.1. Protection. BPM will protect Customer Data with the same standard of care it uses to protect its own. BPM will not disclose the Customer Data, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential.
4.2. View-ship. BPM will NOT examine the content of Customer email messages without Customer consent except if:4.2.1.The New Zealand Department of Internal Affairs deems the Customer and/or End-User to be in possible violation of New Zealand law.4.2.2. BPM management deem it necessary to stop or resolve an Emergency Security Issue.
5. Customer Administration of the Services
Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); (c) ensuring that contact information for Customer’s designated Administrators is accurate and kept up- to-date in the Admin Console and (d) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Terms and Conditions Agreement.
6. General Security
All facilities used to store and process Customer Data will adhere to reasonable security standards. BPM has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data and protect against unauthorized access to or use of Customer Data.
7. Email Communications
Customer email address is used to only send information that the Customer has requested. BPM allows you to elect to receive, or not receive, certain information from BPM. BPM adheres strictly to permission-based email policy.
Payments are made securely online via Credit Card or Direct Credit. BPM keep records of Customer billing information in a secure database to facilitate future payments. All Customer credit card details are stored securely to meet PCI DSS compliance.
Addendum to Terms and Conditions of Service Agreement – European Union General Data Protection Regulation
This Data Processing Addendum (DPA”) constitutes an addendum to Black Pearl Mail’s Terms and Conditions of Service Agreement (the Agreement), and forms part of the Agreement between Black Pearl Mail, a New Zealand Company, Company Office Number 4064918, with offices at Ground Floor 25 Victoria Street, Petone, Lower Hutt, 5012, New Zealand (“BPM”) and the entity agreeing to these terms (“Customer”). It is effective from the date of notification to Customer. By their continued use of BPM’s services, the Customer accepts and agrees to the terms of this addendum.
All capitalized terms not defined in this DPA will have the meanings set forth in the Agreement. Terms used but not defined in this DPA, such as “controller,” “data subject,” “personal data,” “processing,” and “processor” will have the same meaning as set forth in the EU Data Protection Law.
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
“Agreement” means BPM’s Terms and Conditions of Service Agreement, which govern the provision of the Services to Customer, as such terms may be updated by BPM from time to time.
“Data Protection Laws” means all data protection and privacy laws applicable to the processing of personal data under the Agreement, including, where applicable, EU Data Protection Law
“EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
“EEA” means the European Economic Area, United Kingdom and Switzerland.
“Privacy Shield Principles” means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Customer data.
“Services” means any product or service provided by BPM to Customer pursuant to the agreement.
“Subprocessors” means the other processors that are used by BPM to process Personal Data.
“Subscriber Data” means any personal data that BPM processes on behalf of Customer as a processor in the course of providing Services, as more particularly described in this DPA.
2. Relationship with the Agreement
2.1 The parties agree that except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
2.2 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
2.3 Customer further agrees to fully indemnify BPM for any regulatory penalties incurred or damages sought by end users against BPM in relation to the Subscriber Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws.
2.4 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.5 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3. Scope and Applicability of this DPA
3.1 This DPA applies where and only to the extent that BPM processes Subscriber Data that originates from the EEA or that is otherwise subject to EU Data Protection Law on behalf of Customer as a processor in the course of providing Services pursuant to the Agreement.
3.2 Part A and Exhibits A and B of this DPA shall apply to the processing of Subscriber Data within the scope of this DPA from the Effective Date.
3.3 Part B shall apply to the processing of Subscriber Data within the scope of the DPA from and including 25th May 2018. For the avoidance of doubt, Part B shall apply in addition to, and not in substitution for, the terms in Part A.
Part A: General Data Protection Obligations
4. Roles and Scope of Processing
4.1 Role of the Parties. As between BPM and Customer, Customer is controller of Subscriber Data, and BPM shall process Subscriber Data only as a processor acting on behalf of Customers.
4.2 Customer Processing of Subscriber Data. Customer agrees that (i) it shall comply with its obligations as a controller under Data Protection Laws in respect of its processing of Subscriber Data and any processing instructions it issues to BPM; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for BPM to process Subscriber Data and provide the Services pursuant to the Agreement and this DPA.
4.3 BPM Processing of Subscriber Data. BPM shall process Subscriber Data only for the purposes described in this DPA and only in accordance with Customer’s documented, lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to BPM in relation to the processing of Subscriber Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and BPM.
4.4 Details of Data Processing.
(a) Subject matter: The subject matter of the data processing under this DPA is the Subscriber Data.
(b) Duration: As between BPM and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
(c) Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of BPM’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
(d) Nature of the processing: BPM provides email messaging, analytics technology and other related services, as described in the Agreement.
(e) Categories of data subjects: Any individual accessing and/or using the Services through the Customer’s account (“Users”); and any individual: (i) whose email address is included in the Customer’s Distribution List; (ii) whose information is stored on or collected via the Services, or (iii) to whom Users send emails or otherwise engage or communicate with via the Services (collectively, “End Users”).
(f) Subscriber and Users: Identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility);
(g) End Users: identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, (including email addresses), personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information).
5.1 Authorized Subprocessors. Customer agrees that BPM may engage Subprocessors to process Subscriber Data on Customer’s behalf. The Subprocessors currently engaged by BPM and authorized by Customer are listed in Exhibit A.
5.2 Subprocessor Obligations. BPM shall:
(i) enter into a written agreement with the Subprocessor imposing data protection terms that require the Subprocessor to protect the Subscriber Data to the standard required by Data Protection Laws; and
(ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Subprocessor that cause BPM to breach any of its obligations under this DPA.
6.1 Security Measures. BPM shall implement and maintain appropriate technical and organizational security measures to protect Subscriber Data from Security Incidents and to preserve the security and confidentiality of the Subscriber Data, in accordance with BPMs security standards described in this DPA (“Security Measures”).
6.2 Updates to Security Measures. Customer is responsible for reviewing the information made available by BPM relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that BPM may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
6.3 Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Subscriber Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Subscriber Data uploaded to the Services.
6.4 BPM Disclaimer. BPM accepts no liability for breaches of Subscriber Data that are the fault of Customer. Furthermore, Customer agrees to fully indemnify BMP for any claims or penalties incurred as a result of Customer’s negligence, or failures to comply with its obligations under this DPA.
7. Compliance Verification
7.1 BPM’s Verification of Compliance. Upon reasonable request, BPM will verify its compliance with this DPA, provided that Customer shall not exercise this right more than once per year.
8. International Transfers
8.1 Data Centre Locations. BPM may transfer and process Subscriber Data anywhere in the world where BPM, its Affiliates or its Subprocessors maintain data processing operations. BPM shall at all times provide an adequate level of protection for the Subscriber Data collected, transferred, processed, or retained in accordance with the requirements of Data Protection Laws.
8.2 Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8.2 shall not apply if and to the extent that BPM adopts an alternative data export solution with Customer for the lawful transfer of personal data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which personal data is transferred).
Part B: GDPR Obligations from 25 May 2018
9. Additional Security
9.1 Confidentiality of processing. BPM shall ensure that any person who is authorized by BPM to process Subscriber Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
9.2 Security Incident Response. Upon becoming aware of a Security Incident, BPM shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
10. Changes to Subprocessors
10.1 Customer request for information about, or the addition of Subprocessors. BPM shall (i) provide an up-to-date list of the Subprocessors it has appointed upon written request from Subscriber; and (ii) notify Customer (for which email shall suffice) if it adds Subprocessors at least 10 days prior to any such changes.
10.2 Customer objections to a new Subprocessor. Customer may object in writing to BPM’s appointment of a new Subprocessor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Customer may suspend or terminate the Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).
11. Return or Deletion of Data
11.1 Upon termination or expiration of the Agreement, BPM shall (at Customer’s election) delete or return to Customer all Subscriber Data (including copies) in its possession or control, save that this requirement shall not apply to the extent BPM is required by applicable law to retain some or all of the Subscriber Data, which Subscriber Data BPM shall securely isolate and protect from any further processing, except to the extent required by applicable law.
12.1 Requests for Subscriber Data. The Services provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Subscriber Data, which Customer may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Subscriber Data within the Services, BPM shall (at Customer’s expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of personal data under the Agreement. In the event that any such request is made directly to BPM, BPM shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. If BPM is required to respond to such a request, BPM shall promptly notify Subscriber and provide it with a copy of the request unless legally prohibited from doing so.
12.2 Law Enforcement Authority Demands. If a law enforcement agency sends BPM a demand for Subscriber Data (for example, through a subpoena or court order), BPM shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, BPM may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Subscriber Data to a law enforcement agency, then BPM shall give Customer reasonable notice of the demand to allow Customer to seek a court order or other appropriate remedy unless BPM is legally prohibited from doing so.
12.3 Information for other purposes
To the extent BPM is required under EU Data Protection Law, BPM shall (at Customer’s expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
Schedule A List of BPM Subprocessors
These Subprocessors set out below provide cloud hosting and storage services; content delivery and review services; assist in providing customer support; as well as incident tracking, response, diagnosis and resolution services.
|USA||Email services, Product analytics|
|Microsoft 365||USA||Email services|
|Azure||USA||Mail transport services, database services, application hosting, CDN hosting|
|AWS Amazon||Worldwide||CDN Hosting|
|Zoho||USA||Customer Support, CRM|
|Windcave||New Zealand||Payment Processor|