This GardenIQ Data Processing Agreement (“DPA”) reflects the parties’ agreement with respect to the Processing of Personal Data by us on behalf of you in connection with the GardenIQ App and Service under the Terms of Use available at https://gardeniq.io/legal/terms-of-use 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 incorporation into the Agreement, which may be specified in the Agreement, an Order Form, Enterprise Services Order Form, Agency Services Order Form, or an executed amendment to the Agreement. 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 GardenIQ App subscription, we will let you know when we do via email (if you have subscribed to receive email notifications) or via in-app notification.
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.
This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement, an Order Form, Enterprise Services Order Form, Agency Services Order Form, or an executed amendment to the Agreement. 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 GardenIQ App subscription, we will let you know when we do via email (if you have subscribed to receive email notifications) or via in-app notification.
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. Definitions
California Personal Information means Personal Data that is subject to the protection of the CCPA.
CCPA means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 or "CPRA").
Consumer, Business, Sell, Service Provider, and Share will have the meanings given to them in the CCPA.
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.
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 European Data Protection Laws, the CCPA and other applicable U.S. federal and state privacy laws, and the data protection and privacy laws of Australia, Singapore, and Japan, in each case as amended, repealed, consolidated or replaced from time to time; with regard to Garden IQ, Data Protection Laws exclude laws governing Sensitive Data, as defined in the Terms of Use.
Data Subject means the individual 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 Services pursuant to the Agreement, but have not signed their own separate agreement with us and are not an Account User as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by us, and (iii) are subject to Data Protection Laws.
Personal Data means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data; and (ii) is protected similarly as personal data, personal information, or personally identifiable information under applicable Data Protection Laws.
Personal Data Breach means 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 by us and/or our Sub-Processors in connection with the provision of the Service. "Personal Data Breach" will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
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.
Sub-Processor means any Processor engaged by us or our Affiliates to assist in fulfilling our obligations with respect to the provision of the Service under the Agreement. Sub-Processors may include third parties or our Affiliates but will exclude any Garden IQ employee or consultant.
CCPA means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 or "CPRA").
Consumer, Business, Sell, Service Provider, and Share will have the meanings given to them in the CCPA.
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.
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 European Data Protection Laws, the CCPA and other applicable U.S. federal and state privacy laws, and the data protection and privacy laws of Australia, Singapore, and Japan, in each case as amended, repealed, consolidated or replaced from time to time; with regard to Garden IQ, Data Protection Laws exclude laws governing Sensitive Data, as defined in the Terms of Use.
Data Subject means the individual 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 Services pursuant to the Agreement, but have not signed their own separate agreement with us and are not an Account User as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by us, and (iii) are subject to Data Protection Laws.
Personal Data means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data; and (ii) is protected similarly as personal data, personal information, or personally identifiable information under applicable Data Protection Laws.
Personal Data Breach means 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 by us and/or our Sub-Processors in connection with the provision of the Service. "Personal Data Breach" will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
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.
Sub-Processor means any Processor engaged by us or our Affiliates to assist in fulfilling our obligations with respect to the provision of the Service under the Agreement. Sub-Processors may include third parties or our Affiliates but will exclude any Garden IQ employee or consultant.
2. Customer Responsibilities
A. Compliance with Laws
Within the scope of the Agreement and in its use of the Service, 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 Customer 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 Account User 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/SMS, or other content created, sent or managed through the Service, including those relating to obtaining consents (where required) to send emails/SMS, the content of the emails/SMS, and its email/SMS deployment practices. You will inform us without undue delay if you are not able to comply with your responsibilities under this 'Compliance with Laws' section or applicable Data Protection Laws.
B. Controller Instructions
The parties agree that the Agreement (including this DPA), together with your use of the Service in accordance with the Agreement, constitute your complete Instructions to us in relation to the Processing of Personal Data, so long as you may provide additional instructions during the subscription term that are consistent with the Agreement, the nature and lawful use of the Service.
C. Security
You are responsible for independently determining whether the data security provided for in the Service adequately meets your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Service, including protecting the security of Personal Data in transit to and from the Service (including to securely backup or encrypt any such Personal Data).
3. Garden IQ 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 Service 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 ("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.
E. Personal Data Breaches
We will notify you without undue delay after we become 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 all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Subscription Service in accordance with the procedures set out in our Terms of Use Section 2F. This term will apply except where we are required by applicable law to retain some or all of the Customer Data, or where we have archived Customer Data on back-up systems, which data we will securely isolate and protect from any further Processing and delete in accordance with our deletion practices. You may request the deletion of your Garden IQ account after expiration or termination of your subscription by sending a request to our Legal Team.
4. Data Subject Requests
The Service provides you with a number of controls that you can use to retrieve, correct, delete or restrict Personal Data, which you can use to assist it in connection with its obligations under Data Protection Laws, including your obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws ("Data Subject Requests").
To the extent that you are unable to independently address a Data Subject Request through the Service, then upon your written request we will provide reasonable assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement.
You will reimburse us for the commercially reasonable costs arising from this assistance.
If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly inform you and will advise the Data Subject to submit their request to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.
To the extent that you are unable to independently address a Data Subject Request through the Service, then upon your written request we will provide reasonable assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement.
You will reimburse us for the commercially reasonable costs arising from this assistance.
If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly inform you and will advise the Data Subject to submit their request to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.
5. Sub-Processors
You agree we may engage Sub-Processors to Process Personal Data on your behalf, and we do so in three ways. First, we may engage Sub-Processors to assist us with hosting and infrastructure. Second, we may engage with Sub-Processors to support product features and integrations. Third, we may engage with Garden IQ Affiliates as Sub-Processors for service and support. Some Sub-Processors will apply to you as default, and some Sub-Processors will apply only if you opt-in.
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, 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.
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, 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 as necessary to provide the Service in accordance with the Agreement, and in particular that Personal Data may be transferred to and Processed by Garden IQ in other jurisdictions within the United States, where Garden IQ Affiliates and Sub-Processors have operations. Wherever Personal Data is transferred, each party will ensure such transfers are made in compliance with the requirements of Data Protection Laws.
7. Additional Provisions for California Personal Information
A. Scope
The 'Additional Provisions for California Personal Information' section of the DPA will apply only with respect to California Personal Information.
B. Roles of the Parties
When processing California Personal Information in accordance with your Instructions, the parties acknowledge and agree that you are a Business and we are a Service Provider for the purposes of the CCPA.
C. Responsibilities
We certify that we will Process California Personal Information as a Service Provider strictly for the purpose of performing the Services under the Agreement (the "Business Purpose") or as otherwise permitted by the CCPA. Further, we certify we i) will not Sell or Share California Personal Information; (ii) will not Process California Personal Information outside the direct business relationship between the parties, unless required by applicable law; and (iii) will not combine the California Personal Information included in Customer Data with personal information that we collect or receive from another source (other than information we receive from another source in connection with our obligations as a Service Provider under the Agreement).
D. Compliance
We will (i) comply with obligations applicable to us as a Service Provider under the CCPA and (ii) provide California Personal Information with the same level of privacy protection as is required by the CCPA. We will notify you if we make a determination that we can no longer meet our obligations as a Service Provider under the CCPA.
E. CCPA Audits
You will have the right to take reasonable and appropriate steps to help ensure that we use California Personal Information in a manner consistent with Customer’s obligations under the CCPA. Upon notice, you will have the right to take reasonable and appropriate steps in accordance with the Agreement to stop and remediate unauthorized use of California Personal Information.
F. Not a Sale
The parties acknowledge and agree that the disclosure of California Personal Information by the Account User to Garden IQ does not form part of any monetary or other valuable consideration exchanged between the parties.
8. 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 and the terms that apply in the ‘Amendment; No Waiver’ section of the Terms of Use will apply.
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), 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 Terms of Use and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA). For the avoidance of doubt, if Garden IQ is not a party to the Agreement, the ‘Limitation of Liability’ section of the Terms of Use will apply as between you and Garden IQ, and in such respect any references to ‘Garden IQ’, ‘we’, ‘us’ or ‘our’ will include Garden IQ as a party to the Agreement. In no event will either party's liability be limited with respect to any individual's data protection rights under this DPA or otherwise.
D. Governing Law
This DPA will be governed by and construed in accordance with the Terms of Use, unless required otherwise stated by Data Protection Laws.
9. Parties to this DPA
A. Permitted Affiliates
By subscribing to the Service you enter into the Agreement, you also enter into this DPA on behalf of yourself and in the name and on behalf of your Permitted Affiliates. For the purposes of this DPA only, and except where indicated otherwise, the terms “Account User”, “you” and “your” will include you and such Permitted Affiliates.
B. Authorization
The legal entity agreeing to this DPA as Account User represents 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
The parties agree that (i) solely the Account User entity 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 Account User entity 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 Account User entity that is the contracting entity is responsible for coordinating all Instructions, authorizations and communications with us under the DPA and will be entitled to make and receive any communications related to this DPA on behalf of its Permitted Affiliates.
Contact Information
Please contact us if you have any questions about our privacy practices or this Data Processing Agreement. You can reach us via email at legal@gardeniq.io or via postal mail at the following address:
GardenIQ, LLC
Attention: Legal
1985 King Avenue
Suite 128
Kings Mills, Ohio 45034-9998
Attention: Legal
1985 King Avenue
Suite 128
Kings Mills, Ohio 45034-9998
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