Terms of Service
1. Introduction
1.1 The following describes the terms of service (the "Terms of Service") upon which Artbrain Ltd. ("Artbrain" or "us" or "we") offers access to the Internet site found at www.artbrain.co (the "Site") to you, ("you" or "your") and the use of the Services (as defined below) provided via the Site. This is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible.
1.2 PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. WHEN YOU ACCESS OR USE THIS SITE OR THE SERVICES, YOU WILL BE REQUIRED TO ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS OF SERVICE, INCLUDING THE ARTBRAIN PRIVACY POLICY AND ANY PURCHASE ORDER AGREED UPON SEPARATELY BETWEEN US IF APPLICABLE. EACH PURCHASE ORDER SHALL BE SUBJECT TO THESE TERMS OF SERVICE. IN THE EVENT OF A CONTRADICTION BETWEEN THE PURCHASE ORDER AND THESE TERMS OF SERVICE, THE PURCHASE ORDER WILL GOVERN.
1.3 We may suspend, modify, remove, or add to the Services or Site at any time and Artbrain shall not be liable to you for such.
2. Definitions
“Campaign” means marketing campaigns, including, without limitation, personalized emails, advertisements, social media campaigns, and mailings.
“Clients” means the clients whose information has been uploaded to the Software by you.
“Fees” means all payment which shall be made by you in accordance with your chosen subscription plan, including the set-up fees, social media campaigns fees, and monthly fees.
"Information" means all information about the Property provided by you to Artbrain, including, but not limited to text, images, written descriptions, categories, sub-categories, and tags.
“License” shall have the meaning ascribed to it in section 4.1.
“Personal Data” any data relating to an identified or identifiable Client. This can include names, user ID, location data, email addresses, photographs, purchase history, user account information, opinions, and correspondence to and from an individual but shall not include insights derived from such data by Artbrain.
“Property” means the goods and/or services that auction houses, galleries, dealers, and sellers upload to the Software.
“Purchase Order” means the specific conditions agreed upon separately between Artbrain and you regarding each of the Services provided by Artbrain.
“Services” means the services and technology provided by Artbrain that allows you to, among other things, inventory, promote, and organize Property online, derive insights about the Clients’ preferences, and create, send, and manage certain Campaigns.
“Site” shall have the meaning ascribed to it in the introduction section.
“Software” means the software provided by Artbrain which enables you to use the Services.
3.Amendments to the Terms of Service
3.1 We reserve the right to amend, remove, or add to the Terms of Service at any time. Please check the "Last Modified" heading at the bottom of this document to see when the Terms of Service were last updated.
3.2 Any changes to the Terms of Service will become effective when we post the revised Terms of Service on the Site. Your use of the Site and/or Services means that you accept the updated Terms of Service.
3.3 If, at any time, you do not wish to accept the Terms of Service, you may not use the Site and/or the Services. Any terms and conditions proposed by you which are in addition to or which conflict with these Terms of Service are expressly rejected by Artbrain and will have no force or effect.
3.4 We advise that you check for updates to the Terms of Service on a regular basis.
4. License
4.1. Artbrain grants you a non-exclusive, non-transferable, revocable, non-assignable, and limited personal license to access and use the Site and the Services (the "License").
4.2. By submitting, posting, publishing or otherwise providing any information on or through our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right and license to use, host, store, process, reproduce, distribute, publish, adapt, modify, translate, create derivative works from, publicly perform, and publicly display the Information, in any and all media now known or later developed, for the purposes of operating, distributing, promoting, and improving our Services, and developing new Services. You represent and warrant that: (i) you own or otherwise control all of the rights to the Information; and (ii) the use of the Information does not violate these Terms of Service and will not violate any right of, or cause injury to, any person or entity.
4.3. This License is conditional on your full and continuing compliance with the Terms of Service and each Purchase Order.
4.4. You agree not to "deep-link" to the Site or the Software, resell or permit access to the Site or the Software to others, and not to copy any materials appearing on the Site or the Software for resale or for any other purpose to others without the prior written consent of Artbrain.
4.5. We welcome feedback, comments and suggestions about our Services ("Feedback"). However, you acknowledge and agree that we will have the right to use any and all Feedback at our sole discretion, for any and all purposes, commercial or otherwise, without any obligation of any kind to you. In any case, we will have no obligation to act on, use or respond to any Feedback in any way.
4.6. We reserve all rights not expressly granted to you in these Terms of Service.
5. Your use of the Site and Services
5.1. If you are under the age of 18 you must not use the Site and/or the Services. If you are using our Services on behalf of a company or other entity, you represent and warrant that you are at least eighteen (18) years old and that you are authorized to bind that company or other entity to these Terms of Service, in which case the terms "you" and "your" in these Terms of Service will refer to that entity.
5.2. You may be given the opportunity to register via an online registration form to create a user account that may allow you to receive information from us and/or to participate in certain features on the Site. We will use the information you provide during the registration process in accordance with our Privacy Policy. By registering you represent and warrant that all information that you provide is current, complete and accurate to the best of your knowledge. You agree to maintain and promptly update your information on the Site so that it remains current, complete, and accurate. You are responsible for obtaining and maintaining all connectivity, computer software, hardware, and other equipment needed for access to and use of the Site and all charges related to the same.
5.3. You shall be responsible and bound by any unauthorized use of the Site, made in breach of this Section 4.
5.4. The License granted under these Terms of Service will terminate if you fail to otherwise comply with any term or condition of these Terms of Service. Upon such violation, you agree to cease accessing Site and the Services.
5.5. You shall be responsible for providing and maintaining the means by which you access the Site, which may include, but is not limited to, your personal computer or mobile device, connectivity hardware, and telecommunication lines.
5.6. You shall be responsible for all access and service fees necessary to connect to the Site and assume all charges incurred by the use of such connectivity services. You further assume all risks associated with the use and storage of information on your personal computer, mobile device or on any other computer or device through which you will gain access to the Site and/or the Services (hereinafter referred to as "Computer").
5.7. You represent and warrant that you have implemented and plan to operate and maintain appropriate protection in relation to the security and control of your Computer and any information and data included therein.
5.8. You agree that we will not be liable in any way to you in the event of failure of or damage or destruction to your Computer systems, data or records or any part thereof, or for delays, losses, errors or omissions resulting from the failure or mismanagement of any telecommunications or computer equipment or software.
5.9. If you send a Campaign, you shall include in it a reference to Artbrain linked to this website such as “powered by Artbrain” or similar language.
5.10. You will not in any way, whether directly or indirectly, expose Artbrain or any of Artbrain's online service providers to any computer virus or other similarly harmful or inappropriate material or device.
5.11. We reserve the right to remove or refuse to display any information on our Services, in whole or part, if we believe that such Information may violate these Terms of Service, the law or any third-party rights, or for any other reason, without notice or liability, at any time at our sole discretion.
6. Payment
6.1. Access to the Services, or to certain features of the Services, require you to pay fees as agreed in the Purchase Order and further discussed below. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Upon registering for Services, you will be required to designate a valid credit card or PayPal® account. You hereby authorize Artbrain to charge to your designated account all Fees relating to the Services you select, and you agree to pay all such Fees in accordance with the applicable cardmember agreement or PayPal® terms and conditions. YOU, AND NOT ARTBRAIN, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.
6.2. Initial Set-up Fees: By subscribing to the Services, you agree that you will pay the applicable set-up fee for the package to which you have elected to subscribe. Your set-up fee will automatically be charged to the credit card you designated as the credit card to be billed for your account.
6.3. Monthly Fees: By subscribing to the Services, you agree to recurring billing. Billing occurs on the same day each month, based on the date that you started the package to which you have elected to subscribe. The following terms shall apply to such monthly payments:
6.3.1. To ensure uninterrupted service, all monthly subscriptions to the Services are renewed automatically. You hereby authorize Artbrain to charge Fees for the renewal period to the credit card or PayPal® account on file. All monthly subscriptions are renewed at the subscription level and Fees in effect at the time the then-current subscription term ends provided that if the Fee for your renewal subscription Service increases, we will notify you at your designated email address prior to renewal so that you have an opportunity to elect not to renew. You may cancel the subscription at any time by contacting us at support@artbrain.co.
6.3.2. If you cancel after your subscription renewal date, you will not receive a refund for any amounts that have been charged. Your cancellation will be effective at the end of your then-current subscription period, subject to applicable law, and you may use the Services until your cancellation is effective (unless your access is suspended or terminated as set forth below).
6.3.3. Social Campaign Fees: The social campaign fee shall be calculated as a percentage of the ad spend chosen by you, as set out in the package you choose.
6.4. Subscription Upgrade: If you would like to upgrade to a higher level subscription Service (for example from Artbrain Basic to Artbrain Standard), you may upgrade the subscription Service to which you have elected to subscribe at any time by contacting us at support@artbrain.co. If you upgrade the subscription Service to which you elected to subscribe during the term of such subscription Service, and you elect to apply the value of your existing lower-level subscription, then your credit card will be charged for the difference between the full amount of your new Subscription Service which shall be activated on the date of the change and the pro-rata refund for the remainder of the term of the original subscription Service. Any time on the lower value subscription that resulted from a promotion or coupon may not be applied to a higher value subscription and is always used last (at the end of the subscription period). For example, if you purchase a 12-month Basic service subscription using a coupon that provides one month for free, then there will be no remaining value to apply towards an upgrade to Standard level subscription after 11 months.
6.5. Except as otherwise expressly set forth above, all fees and charges, including charges for automatically renewed Subscription Services, are in US Dollars and nonrefundable.
6.6. Unless you notify Artbrain in writing of any discrepancies or unauthorized charges within sixty (60) days after they first appear on your credit card statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release Artbrain from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to Artbrain in writing within sixty (60) days of its first appearance on an invoice or credit card statement.
6.7. Your account may be deactivated without notice to you if payment is past due, regardless of the unpaid amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your subscription to the applicable Services.
6.8. You are responsible for paying any governmental taxes imposed on your use of the Services, including, but not limited to, sales, use or value-added taxes. If however, you are an Israeli citizen, VAT will be charged and collected at a rate of 17% in addition to the Fees.
6.9. If Artbrain changes the fees for the Services, including by adding additional fees or charges, Artbrain will provide you advance notice of those changes. If you do not accept the changes, Artbrain has the right to discontinue providing the Services to you.
7. Legal Restrictions
7.1. You understand that it is solely your responsibility to ensure that you fully comply with any law, regulation or directive, applicable in the jurisdiction from which you access and/or use the Site and/or the Services (including without limitation privacy and data protection laws and laws applicable to sending of unsolicited email).
7.2. You represent and warrant that your use of the Service will comply with all applicable laws and regulations.
7.3. You represent and warrant that you either own or have permission to use and collect your personal information and all of the Personal Data, and Information you submit to Artbrain in the course of using the Service. To the extent that any Personal Data is processed in connection with the Services the terms set forth in the Data Processing Addendum, which are hereby incorporated by reference, shall apply.
7.4. If you collect any Personal Data pertaining to a minor and store such information within your account, you represent and warrant that you have obtained valid consent from the minor according to the applicable laws of the jurisdiction in which the minor lives, or that you have otherwise obtained the required parental or guardian consent according to the applicable laws of the jurisdiction in which the minor lives.
7.5. If you’re located in the European Economic Area, the United Kingdom, or Switzerland (collectively, the “EEA”) and/or distribute Campaigns through the Service to anyone located in the EEA (each such member an “EEA Member”) in creating your Campaign distribution list, sending Campaigns via the Service, and/or otherwise collecting information, you represent and warrant to Artbrain that:
7.5.1. You will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that satisfies the requirements of applicable data protection laws, describes your use of the Service.
7.5.2. You will get and maintain all necessary permissions and valid consents required to lawfully transfer Personal Data to Artbrain and to enable such Personal Data to be lawfully collected, processed, and shared by Artbrain for the purposes of providing the Service or as otherwise required by the Clients.
7.5.3. You will comply with all laws and regulations applicable to the Campaigns sent through the Service, including those relating to (i) acquiring consents (where required) to lawfully send Campaigns, (ii) the Content of Campaigns, and (iii) your Campaign deployment practices.
7.5.4. You will provide and obtain all notices and obtain all necessary consents required by applicable data protection laws to enable Artbrain to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of contacts and end-users of the Service in accordance with and as described in the Cookies Policy.
7.6. In addition, you acknowledge and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your Clients made under EU Data Privacy Laws, or, alternatively, we may direct any such Clients to you so that you can respond to the request accordingly.
7.7. You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this Section 6.1.
7.8 We do not, under any circumstances, sell your Personal Data to third parties. For the avoidance of doubt, we may use all the Information and insights derived from the Personal Data and we will act as a data controller to process data for our analytics purposes in reliance on our legitimate business interests of improving and enhancing our products and services and to provide additional services to Clients.
8. Disclaimer
8.1. Due to the wide range of sources from which the content presented on the Site is obtained, there may be delays, omissions or inaccuracies in such content and the Site.
8.2. THE CONTENT, THE SERVICES AND THE SITE ARE PROVIDED "AS IS", WITHOUT ANY WARRANTIES. ARTBRAIN, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, TIMELINESS, NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT AVAILABLE THROUGH THE SITE AND/OR THE SERVICES, OR THE SITE ITSELF, AND WE HEREBY DISCLAIM ANY SUCH EXPRESS OR IMPLIED WARRANTIES.
8.3. WE DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT WE WILL HAVE ADEQUATE CAPACITY FOR THE SITE AS A WHOLE OR IN ANY GEOGRAPHIC LOCATION.
8.4. ARTBRAIN DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE SITE AND/OR THE SERVICES WILL PROVIDE UNINTERRUPTED AND ERROR-FREE SERVICE. ARTBRAIN DOES NOT MAKE ANY WARRANTIES OR GUARANTEES WITH RESPECT TO THE SITE AND ITS CONTENT, INCLUDING BUT NOT LIMITED TO, WARRANTIES FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.5. IN NO EVENT SHALL ARTBRAIN, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY OR TO ANYONE ELSE FOR ANY KIND OF FINANCIAL LOSS, LOST PROFITS, ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGE OR ANY OTHER SIMILAR DAMAGE OR ANY OTHER LOSS OR INJURY, RESULTING DIRECTLY OR INDIRECTLY FROM USE OF THE SITE AND/OR THE SERVICES.
8.6. IN NO EVENT SHALL ARTBRAIN, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY OR ANY ONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH CONTENT ON THE SITE AND/OR MADE AVAILABLE THROUGH THE SERVICES.
8.7. WE SHALL NOT BE LIABLE, AND YOU AGREE NOT TO HOLD OR SEEK TO HOLD ARTBRAIN OR ANY OF ITS AGENTS OR SERVICE PROVIDERS LIABLE, FOR ANY TECHNICAL PROBLEMS, SYSTEM FAILURES AND MALFUNCTIONS, COMMUNICATION LINE FAILURES, EQUIPMENT OR SOFTWARE FAILURES OR MALFUNCTIONS, SYSTEM ACCESS ISSUES, SYSTEM CAPACITY ISSUES, HIGH INTERNET TRAFFIC DEMAND, SECURITY BREACHES AND UNAUTHORIZED ACCESS, AND OTHER SIMILAR COMPUTER PROBLEMS AND DEFECTS.
8.8. WITHOUT DEROGATING FROM ANY OTHER PROVISION IN THE TERMS OF SERVICE, IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED USD 50.
9. Trademarks and Copyrights
9.1. All rights, titles and interests in and to the contents of the Site and/or the Services including, without limitation, copyrights, trademarks, services marks, trade names, and logos are owned by Artbrain, or its affiliates, or other licensors and are protected by copyright and trademark laws, and international treaties.
9.2. You agree not to delete any copyright notices or other indications of protected intellectual property rights from materials that you print or download from the Site and/or the Services. You will not obtain any intellectual property rights or any right or license to use such materials, the Site and/or the Services, other than as expressly set out in these Terms of Service.
9.3. Images displayed on the Site and/or the Services are either the property of Artbrain or its licensors. You agree not to upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights and the prior written consent of Artbrain.
9.4. Nothing contained on the Site and/or the Services may be construed as granting, by implication, estoppels, or otherwise, any license or right to use any trademark without the written permission of Artbrain or any third party that may own the trademarks.
9.5. Your use of trademarks, or any other content of the Site and/or Services, except as provided herein, is strictly prohibited.
10. Breach
10.1. You agree to fully indemnify, defend and hold harmless Artbrain, its corporate affiliates and their respective officers, directors and employees immediately upon demand from and against all claims, demands, liabilities, damages, losses, costs and expenses, including legal fees and other charges whatsoever, howsoever caused, that may arise as a result of:
10.1.1. any breach of these Terms of Service by you;
10.1.2. your violation of any law, regulation or directive; and/or
10.1.3. your violation of the right of any third party.
10.2. Without prejudice to any other rights in these Terms of Service, if you breach in whole or in part any provision contained herein, Artbrain or any of its corporate affiliates which provides Services to you reserves the right to take such action as it sees fit, including (but not limited to) terminating any agreement in place with you, terminating or blocking the Services offered to you via the Site and/or taking legal action against you.
11. Links to Third Party Sites
11.1. This Site and/or Services may contain hyperlinks to websites operated by persons other than Artbrain. Such hyperlinks are provided for your reference and convenience only.
11.2. You agree not to hold Artbrain responsible for the content or operation of such websites.
11.3. A hyperlink from this Site and/or the Services to another website does not imply that Artbrain endorses the content on that website or the operator or operations of that site. You are solely responsible for determining the extent to which you may use any content at any other web sites to which you might link from this Site.
12. Force Majeure
You agree that we will not be liable in any way to you or to any other person in the event of force majeure (including, but not limited to, the act of any government or legal authority) or for the failure of or damage or destruction to your computer systems, data or records or any part thereof, or for delays, losses, errors or omissions resulting from the failure or mismanagement of any telecommunications or computer equipment or software.
13. Governing Law and Court Jurisdiction
13.1. These Terms of Services shall be governed by the laws of Israel, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with Artbrain anywhere else in the world.
13.2. You agree to submit to the personal and exclusive jurisdiction of the competent courts of Tel-Aviv, Israel to settle any dispute, which may arise in relation thereto.
14. General Previsions
14.1. Waiver: If we fail to insist upon strict performance of any of your obligations or if we fail to exercise any of the rights or remedies to which we are entitled, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any subsequent default.
14.2. You consent to receive communications from us electronically, and you agree that we may communicate with you by posting notices on our Services and/or by email. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that all notices we provide to you by email will be considered received by you on the day that we send them. If you register for an Artbrain account or otherwise provide us with an email address, you agree that we are not responsible for any automatic filtering that you or your network provider may apply to any email that we send to the email address you provided. If at any time you would like to withdraw your consent to receive emails, please use the "unsubscribe" button on the email, or contact us to do so, however it is understood and agreed by you that if you withdraw consent, you may not be able to participate in all Services offered.
14.3. Severability: If any of the provisions of the Terms of Service is determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law. In such cases, the part deemed invalid or unenforceable shall be amended in a manner consistent with the applicable law to reflect, as closely as possible, Artbrain's original intent.
14.4. Entire Agreement: The Terms of Service contains the entire agreement between Artbrain and you relating to your use of the Site and the Services and supersedes any and all prior agreement between Artbrain and you in relation to the same. You confirm that, in agreeing to accept the Terms of Service, you have not relied on any representation save insofar as the same has expressly been made a representation by Artbrain in the Terms of Service. You understand that certain Services provided by Artbrain by using Mailchimp API and accordingly additional terms may apply to such Services as set out in Mailchimp Terms of Use.
14.5. Transfer of Rights and Obligations: We reserve the right to transfer, assign, sublicense or pledge the Terms of Service, in whole or in part, to any person without notice to you. You may not assign, sublicense, pledge or otherwise transfer in any manner whatsoever any of your rights or obligations under the Terms of Service.
14.6. Third Party Rights: Unless otherwise expressly stated, nothing in the Terms of Service shall create or confer any rights or any other benefits to third parties.
14.7. Relationship of the Parties: Nothing in the Terms of Service shall be construed as creating any agency, partnership, trust arrangement, fiduciary relationship or any other form of joint enterprise between you and us.
The Services hereunder are offered by Artbrain Ltd., a company incorporated in Israel, with registration number 515935732, having its registered offices at 8 Ramban St. Jerusalem, Israel.
For more information contact us at info@artbrain.co.
Data Processing Addendum
(Last update: August 14th, 2023)
This Data Processing Addendum (the “DPA”) forms part of the agreement between Artbrain Ltd. ("Artbrain") and you (“Customer”) and/or other written or electronic agreement between Artbrain and the Customer (the “Agreement”) to reflect the parties’ agreement with regard to the processing of Personal Data of the Customer, in accordance with the requirements of Applicable Laws. The effective date of this DPA is the date of the last signature of a party on the first Order entered between the parties. All capitalized terms not defined herein shall have the meaning set out in Artbrain’s Terms of Service.
1. Definitions
Capitalized terms in this DPA not otherwise defined in this DPA and/or herein have the meaning set out in the Agreement.
"Agreement" means Artbrain’s Terms of Service and any Purchase Order entered between the Parties, which govern the provision of the Services to the Customer as such terms may be updated by Artbrain from time to time;
"Applicable Laws" means any law, regulation or regulatory requirements applicable now or in the future to the processing of Personal Data by Artbrain during the course of providing the Services under the Agreement, including where applicable, EU Data Protection Law;
"Data Controller" means an entity that determines the purposes and means of the processing of Personal Data;
"Data Processor" means an entity that processes Personal Data on behalf of a Data Controller;
"EU Data Protection Law" means (i) 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);
"Sub-processor" means any Data Processor engaged by Artbrain to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. For web personalization services, we use Dynamic Yield, a Mastercard company, to process Subscriber's email addresses and browsing data.
2. General Terms
2.1 This DPA applies where and only to the extent that Artbrain processes Personal Data that originates from the EEA and/or that is otherwise subject to EU Data Protection Law on behalf of Customer as Data Processor in the course of providing Services pursuant to the Agreement.
2.2 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.
2.3 Artbrain agrees to comply with the following provisions with respect to any Personal Data processed by Artbrain in connection with the provision of the Services.
3. Details of the Processing
3.1 The Customer hereby instructs Artbrain and Artbrain hereby agrees to process Personal Data for or in relation to performing the Services and other obligations under the Agreement and as necessary to comply with other reasonable instructions provided by the Customer ("Instructions") where such Instructions are consistent with the terms of the Agreement and Applicable Laws. The Customer warrants (a) that its Instructions will comply with Applicable Laws including in relation to the protection of Personal Data and (b) that its Instructions will not cause Artbrain to violate Applicable Laws.
3.2 Artbrain will process the Personal Data solely for the purposes of providing the Services and will refrain from transferring the Personal Data to third parties, unless permitted under this DPA and/or the Agreement and/or by the Customer.
3.3 Duration: As between Artbrain and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
3.4 Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of Artbrain's obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
3.5 Nature of the processing: data analysis in order to perform the Services as described in the Agreement.
3.6 Categories of data subjects: Any individual accessing and/or using the Services through the Customer's account ("Users"); and any Client: (i) whose email address is included in the Customer's mailing 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, "Subscribers").
3.7 Types of Customer Data:
3.7.1 Customer 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);
3.7.2 Subscribers: identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address), personal interests or preferences (including purchase and bidding 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). For Customers who use our web personalization services, we also collect information about the browsing activity of Subscribers, such as pages visited on the Customer’s website and actions taken on the website as search, add to watchlist, etc.
4. Data Security; Confidentiality
4.1 Artbrain will develop, implement, maintain, and monitor a comprehensive, written information security program that contains administrative, technical, and physical safeguards to ensure the security and confidentiality of Personal Data and protect against (a) any anticipated threats or hazards to the security or integrity of Personal Data and (b) unauthorized access to, or use of, Personal Data.
4.2 Artbrain will seek to ensure that any employee it authorizes to process Personal Data under this DPA and the Agreement is required to maintain the confidentiality of the Personal Data.
4.3 Artbrain will provide the Customer, upon its reasonable demand, reports concerning the security measures implemented by it and the fulfillment of its obligations under this DPA.
5. Data Breaches
Artbrain will notify the Customer without undue delay after becoming aware that a data security breach has occurred with respect to the Personal Data.
6. Return and Deletion of Data
Upon the termination of the Services for any reason whatsoever, Artbrain shall: (a) immediately cease all further use of the Personal Data and return to the Customer and/or destroy all the Personal Data of any kind whatsoever that is in its possession; and (b) provide the Customer with a written confirmation signed by an authorized signatory of Artbrain, confirming that all Personal Data has been destroyed or otherwise deleted as aforesaid. Notwithstanding the above, Artbrain shall be entitled to retain a copy of the Personal Data if Artbrain is authorized or required by the Agreement or Applicable Law to retain and process that Personal Data.
7. Sub-Processing
7.1 The Customer acknowledges and agrees that Artbrain may use and engage sub-processors to process Personal Data. Artbrain will ensure that any agreement with any of its sub-processors who receive Personal Data of the Customer will stipulate that the sub-processor will be bound by the same confidentiality and data security obligations which Artbrain is bound by under this DPA and the Agreement.
7.2 For our web personalization services we use the services of Dynamic Yield Ltd (Highlands House, Basingtoke Road, Spencers Wood, Reading, Berkshire, England, RG7 1NT). We use this tool to optimise our Customers’ websites in order to make a personalized visit experience for Subscribers’ who visit the website through tailor-made recommendations and content. For this purpose, Dynamic Yield collects pseudonymised information about Subscribers’ usage activities on the website.
8. Right to Terminate
The Customer shall be entitled to terminate the processing of Personal Data by Artbrain, by issuing a written notice to Artbrain, in any of the following events:
8.1 The processing of Data by Artbrain is contrary to any Applicable Law and/or instructions or orders of applicable authorities;
8.2 Artbrain breached any of its obligations under this DPA, and has not remedied such breach within 14 days from the Customer's written demand.
9. Miscellaneous
If there are any conflicts or inconsistencies between this DPA and the Agreement, the provisions in the Agreement prevail, unless the provisions in the Agreement refer specifically to Personal Data, in which case the provisions of this DPA will prevail.
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Last Modified: November 19, 2019