Winnin Insights Data Processing Agreement

Last Modified: March 22, 2022.

This Winnin Insights Data Processing Agreement and its Annexes ( “DPA”) reflects the parties agreement with respect to Processing of Personal Data by Winnin Inc. and its subsidiaries (jointly “Winnin Inc.”)  on behalf of you in connection with the Winnin Insights Subscription under the Winnin Insights Terms of Service and Privacy Policy agreed between you and us (also referred to in this DPA as the “Agreement”).

This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its publication. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.

We update these terms from time to time. If you have an active Winnin Insights subscription, we will let you know when we do via email or throughout Winnin Insights Platform. You can find archived versions of the DPA here, if any.

The term of this DPA will follow the term of the Agreement. Terms not otherwise defined in this DPA will have the meaning as set forth in the Agreement.

1. Whereas

1.  Winnin acts as a data Controller.
2. You wish to contract Winnin Insights Platform, which imply the processing of personal data, to the Data Processor.
3. The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing.
4. The Parties wish to lay down their rights and obligations.

2. Definitions and Interpretations

Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

• “Agreement” means this Data Processing Agreement and all Schedules;
• “Company Personal Data” means any Personal Data processed by a Contracted Processor (including data of its employees, contractors, collaborators, customers, prospects, suppliers and subcontractors) on behalf of Company pursuant to or in connection with the Principal Agreement;
• “Contracted Processor” means a Subprocessor;
• “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data. Winnin Inc. acts as a Data Controller.
• “Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation EU General Data Protection Regulation (GDPR) and the Brazilian General Law of Data Protection (LGPD).
• “Data Subject” means the individual designated as User of Winnin Insights Platform by the Company and to whom Personal Data relates.
• “Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
• “Permitted Affiliates” means any of your Affiliates that (i) are permitted to use the Subscription Services pursuant to the Agreement, but have not signed their own separate agreement with us and are not a “Company” as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by us, and (iii) are subject to European Data Protection Laws and Brazilian Data Protection Laws.
• “Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Company Personal Data and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.
• “Data Transfer” means: (I) a transfer of Company Personal Data from the Company to a Contracted Processor; or (II) an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
• “Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
• “Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.
• “Subprocessor” means any person appointed by or on behalf of the Processor to process Personal Data on behalf of the Company in connection with the Agreement.

The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR and LGPD, and their cognate terms shall be construed accordingly.

3. Customer obligations

a. Compliance with Laws. Within the scope of the Agreement and in its use of the services, you will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to us.

In particular but without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for: (i) the accuracy, quality, and legality of Company Personal Data and the means by which you acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by You for marketing purposes); (iii) ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Subscription Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. You will inform us without undue delay if it is not able to comply with its responsibilities under this subsection (a) or applicable Data Protection Laws.

b. Controller Instructions. The Parties agree that the Agreement (including this DPA), together with your use of the Winnin Insights Subscription Service in accordance with the Agreement, constitute your complete and final Instructions to us in relation to the Processing of Personal Data, and additional instructions outside the scope of the Instructions shall require prior written agreement between us and you.

c. Security. You are responsible for independently determining whether the data security provided for in the Subscription Service adequately meets your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Subscription Service, including protecting the security of Personal Data in transit to and from the Subscription Service (including to securely backup or encrypt any such Personal Data).

4. Winnin obligations

a. Compliance with Instructions. We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to you or your industry that are not generally applicable to us.

b. Conflict of Laws. If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Agreement for any failure to perform the applicable Winnin Insights Subscription Services until such time as you issue new lawful Instructions with regard to the Processing.

c. Security. We will implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches, as described under Annex 2 to this DPA (“Security Measures”). Notwithstanding any provision to the contrary, we may modify or update the Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures. 

d. Confidentiality. We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.

We take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality

e. Personal Data Breaches. We will notify you without undue delay after it becomes aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.

f. Deletion or Return of Personal Data. We will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Winnin Insights Subscription Service in accordance with the procedures and timeframes set out in the Agreement, save that this requirement shall not apply to the extent we are required by applicable law to retain some or all of the Company Personal Data, or to Company Personal Data it has archived on back-up systems, which data we will securely isolate and protect from any further Processing and delete in accordance with its deletion practices. You may request the deletion of your Winnin Insights account after expiration or termination of your subscription, as well as retrieve your data from your account by contacting us on dpo@winnin.com.

5. Sub-Processors

You agree that we may engage Sub-Processors to Process Personal Data on your behalf. We have currently appointed, as Sub-Processors, the third parties listed in Annex 3 to this DPA. We will notify you if we add or remove Sub-Processors to Annex 3 on a regular basis.

Where we engage Sub-Processors, we will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause us to breach any of its obligations under this DPA

6. Data Transfers

You acknowledge and agree that we may access and Process Personal Data on a global basis as necessary to provide the Winnin Insights Subscription Service in accordance with the Agreement, and in particular that Personal Data will be transferred to and Processed by Winnin Inc. and to other jurisdictions where Winnin Affiliates and Sub-Processors have operations. We will ensure such transfers are made in compliance with the requirements of Data Protection Laws.

7. General Provisions

a. Amendments. Notwithstanding anything else to the contrary in the Agreement and without prejudice to the ‘Compliance with Instructions’ or ‘Security’ sections of this DPA, we reserve the right to make any updates and changes to this DPA.

b. Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.

c. Limitation of Liability. Each party and each of their Affiliates’ liability, taken in aggregate, arising out of or related to this DPA (and any other DPAs between the parties) and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the ‘Limitation of Liability’ section of the Agreement and the Winnin Insights Software Agreement and any reference in such sections to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA).  

d. Governing Law. This DPA will be governed by and construed in accordance with the ‘Definitions and interpretations’; ‘Applicable Law; Notices sections of the Jurisdiction Specific Terms, unless required otherwise by Data Protection Laws.

8. Parties to this DPA

a. Permitted Affiliates. By signing the Agreement, you enter into this DPA on behalf of yourself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of your Company and Permitted Affiliates, thereby establishing a separate DPA between us, your Company and each such Permitted Affiliate subject to the Agreement and the ‘General Provisions’ and ‘Parties to this DPA’ sections of this DPA. Company and Each Permitted Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the purposes of this DPA only, and except where indicated otherwise, the terms “Company”, “you” and “your” will include you, the Company you are acting on behalf of and such Permitted Affiliates.

b. Authorization. The legal entity agrees to this DPA as You represent that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Permitted Affiliates.

c. Remedies. Except where applicable Data Protection Laws require a Permitted Affiliate to exercise a right or seek any remedy under this DPA against us directly by itself, the parties agree that (i) solely the entity you are acting on behalf of that is the contracting party to the Agreement will exercise any right or seek any remedy any Permitted Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Company you are acting on behalf of that is the contracting party to the Agreement will exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. The Company that you are acting on behalf of that is the contracting entity responsible for coordinating all communication with us under the DPA and will be entitled to make and receive any communication related to this DPA on behalf of its Permitted Affiliates. 

d. Other rights. The parties agree that you will, when reviewing our compliance with this DPA pursuant to the ‘Demonstration of Compliance’ section, take all reasonable measures to limit any impact on us and our Affiliates by combining several audit requests carried out on behalf of the Company you are acting on behalf of that is the contracting party to the Agreement and all of its Permitted Affiliates in one single audit.

9. Governing Law and Jurisdiction

This Agreement is governed by Brazilian law. Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the Central Court of Judicial District of Rio de Janeiro, Brazil, to the exclusion of all other jurisdictions, no matter how privileged they might be.

Annex 1 – Details of Processing

This Annex forms part of the DPA.

1. Nature and Purpose of Processing

We will Process Personal Data as necessary to provide the Winnin Insights Subscription Services pursuant to the Agreement, as further specified in the Order Form, and as further instructed by you in your use of the Winnin Insights Subscription Services.

2. Duration of Processing

Subject to the ‘Deletion or Return of Personal Data’ section of this DPA, we will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing or required by law.

3. Categories of Data Subjects

You may submit Personal Data in the course of using the Winnin Insights Subscription Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:

Your Contacts and other end users including your employees, contractors, collaborators, customers, prospects, suppliers and subcontractors designated as Users of Winnin Insights Platform. 

4. Categories of Personal Data

You may submit Personal Data to the Winnin Insights Subscription Services, the extent of which is determined and controlled by you in your sole discretion, and which may include but is not limited to the following categories of Personal Data: 

• Contact Information, such as: name, email, telephone, country, company and title

(as defined in the Agreement).

•  Any other Personal Data submitted by, sent to, or received by you, or your end users, via the Winnin Insights Subscription Service, such as: searchs terms; watched videos; redirection to third party websites from our software, IP address and the user’s entire path on our platform.

5. Special Categories of Data (if appropriate)

The parties do not anticipate the transfer of special categories of data.

6. Processing operations

Personal Data will be Processed in accordance with the Agreement (including this DPA) and may be subject to the following Processing activities:

a. Storage and other Processing necessary to provide, maintain and improve the Winnin Insights Subscription Services provided to you; and/or

b. Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws.

Annex 2 – Security Measures

This Annex forms part of the DPA.

We currently observe the Security Measures described in this Annex 2. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the Agreement.

a) Access Control:

i)  Preventing Unauthorized Product Access

Outsourced processing: We host our Service with outsourced cloud infrastructure providers. Additionally, we maintain contractual relationships with vendors in order to provide the Service in accordance with our DPA. We rely on contractual agreements, privacy policies, and vendor compliance programs in order to provide a safe environment.

Physical and environmental security: We host our product infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.

Authentication: We implement a uniform password policy for our customer products. Users who interact with the products via the user interface must authenticate before accessing non-public customer data.

Authorization: User Data is stored in multi-tenant storage systems accessible to User via only application user interfaces and application programming interfaces. Users are not allowed direct access to the underlying application infrastructure. The authorization model in each of our products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.

ii)  Preventing Unauthorized Product Use

We implement industry standard access controls and detection capabilities for the internal networks that support the product.

Access controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.

Static code analysis: Security reviews of code stored in our source code repositories is performed, checking for coding best practices and identifiable software flaws.

iii)    Limitations of Privilege & Authorization Requirements

Product access: A subset of our employees have access to the products and to User Data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective User support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. 

All Winnin Inc. employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.

b) Transmission Control

In-transit: We make HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces and for free on every user site hosted on Winnin Insights Platform. Our HTTPS implementation uses industry standard algorithms and certificates.

At-rest: We store user passwords following policies that follow industry standard practices for security.  We have implemented technologies to ensure that stored data is encrypted at rest. 

c) Input Control

Detection: We designed our infrastructure to log basic information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. Our personnel, including security, operations, and support personnel, are responsive to known incidents.

d) Availability Control

Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.

Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. User data is backed up to multiple durable data stores and replicated across multiple availability zones.

Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.

Our products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists our operations in maintaining and updating the product applications and backend while limiting downtime.

Annex 3- List of Sub-Processors

Sub-Processor	Purpose	Location
Facebook	Data delivery	United States
Youtube	Data delivery	United States
Instagram	Data delivery	United States
Tubular	Services & Support	Brazil
Slack	Services & Support	United States
Azure	Services & Support	France
G Suite	Security and Privacy	United States
Google Trends	Services & Support	United States
Clean Cloud	Content delivery network	Brazil
Maker	Services  & Support	United States
Github	Services & Support	United States
Webflow	Infrastructure	United States
Office 365	Services and Security	United States
Hubspot	Services & Support	United States
Monday	Infrastructure	United States
Miro	Services & Support	United States
Mixpanel	Services & Support	United States
Adobe Premiere	Services & Support	United States
Sendgrid	Infrastructure	United States
Databricks	Services & Support	United States
Datadog	Services	United States
Figma	Infrastructure	United States
AWS	Services & Support	United States
Unsplash	Services	United States
Notion	Services & Support	United States
SEMrush	Infrastructure	Brazil
Linktree	Services & Support	Australia
Databox	Services & Support	United States
Amazon Web Services	Hosting and Infrastructure	United States