Welcome to the SpotGamma website (the “Website”). This Website is operated by TenTen Capital, LLC d/b/a SpotGamma (“SpotGamma”). It is provided as a convenience and for information purposes only. This Terms and Conditions of Use Agreement (the “Agreement”) describes the terms and conditions and the general principles applicable to your access and use of the Website.
1. General Terms
a. Use of Website. SpotGamma grants you a limited, nonexclusive, revocable right to access and make personal, non-commercial use of this Website, provided you do not modify, alter or download (other than page caching) any portion of it unless otherwise specifically provided herein or You have obtained written authorization in advance from SpotGamma. The permission granted to You shall terminate automatically and immediately if you breach any of the terms or conditions set forth in this Agreement. SpotGamma reserves the right to modify or remove any materials or services listed on the Website at any time without further notice. All rights not expressly granted herein, are expressly reserved by SpotGamma.
b. Account Security. You are responsible for both:
i. Making all arrangements necessary for you to have access to the Website.
c. Prohibited Use of Website. You shall not make any commercial use of this Website or its contents. You further agree not to download or copy any content for the benefit of any third-party or use any data mining, robots, or similar data gathering and extraction tools. This Website, or any portion of this Website, may not be reproduced, duplicated, copied, displayed, sold, resold, or exploited for any commercial purpose without the express written consent of SpotGamma. You will not use the Website in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries). Additionally, you agree not to:
i. Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
ii. Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
iii. Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in this Agreement, without our prior written consent.
iv. Use any device, software, or routine that interferes with the proper working of the Website.
v. Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
vi. Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
vii. Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
viii. Otherwise attempt to interfere with the proper working of the Website.
d. Online Purchases. While we strive to have accurate information on our Website, we understand that mistakes can happen. You should be aware that the information on our Website may contain errors, omissions, inaccuracies, or outdated information. We make no representations or warranties as to the completeness, accuracy, adequacy, currency, or reliability of any information and are not liable for any lack of the foregoing.
f. Equipment. You shall be solely responsible for providing, maintaining and ensuring compatibility with the Website including all hardware, software, electrical and other physical requirements for your use of this Website, including, without limitation, telecommunications, Internet access connections, Web browsers or other equipment, programs and services required to access and use the Website.
g. Accessibility. You acknowledge and agree that at times this Website may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which SpotGamma may undertake from time to time; or (iii) causes which are beyond the control of SpotGamma or which are not reasonably foreseeable.
2. Ownership of Intellectual Property
a. Trademarks. The trademarks, service marks, brand names and logos appearing on this Website are owned by SpotGamma and others. Nothing herein shall be construed as granting any license or right to use any trademarks, service marks, brand names, or logos appearing on the Website, without the express written permission of the owner. You may not frame or utilize framing techniques to enclose any trademarks, brand names, service marks, logos, or use any meta tags or any other “hidden text” utilizing SpotGamma’s trademarks, brand names, or service marks without the express written consent of SpotGamma.
b. Copyrighted Works. Copyrights in content provided on this Website, including, but not limited to, images, video, photos, electronic art, animations, graphics, sounds, audio, information and data, communication programs, electronic mail services, and user interfaces, executable code, and data formatted, organized, and collected in a variety of forms, including layouts, pages, screens, directories, and databases (hereafter “Copyrighted Works”) is exclusively owned by SpotGamma or others, and is protected by U.S. and international copyright laws. Except as stated herein, you agree that you will not copy, reproduce, modify, alter, create derivative works from, distribute, display, post, or transmit any Copyrighted Works (except for your personal, private, non-commercial use) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of SpotGamma and any appropriate third party as applicable.
a. Links to the Website and Social Media Features. You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
This Website may provide certain social media features that enable you to:
i. Link from your own or certain third-party websites to certain content on this Website.
ii. Send emails or other communications with certain content, or links to certain content, on this Website.
iii. Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
i. Establish a link from any website that is not owned by you.
ii. Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
iii. Link to any part of the Website other than the homepage.
iv. Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of this Agreement.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. SpotGamma reserves the right to withdraw linking permission without notice.
SpotGamma may disable all or any social media features and any links at any time without notice in our discretion.
b. Links from the Website. The Website may contain links to other sites and resources provided by third parties, which are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. SpotGamma has no control over the contents of those third-party sites or resources, and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
c. Third Party Integrations. SpotGamma integrates with various futures trading platforms and displays links to other websites and content. SpotGamma is not responsible or liable for any actions or inactions of other websites. SpotGamma may use third-party vendors to provide necessary hardware, software, networking, storage, and related technology to run the Website or any product or service offered through the Website. SpotGamma is not responsible in any manner whatsoever for any actions or inactions of such third-parties.
d. Geographic Restrictions. The owner of the Website is based in the State of Connecticut in the United States. SpotGamma provides this Website for use only by persons located in the United States. SpotGamma make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. SpotGamma reserves the right to limit the availability of the Website and/or the provision of any service or product described thereon to any person, geographic area, or jurisdiction it so desires, at any time and in its sole discretion, and to limit the quantities of any such service or product that SpotGamma provides.
4. Disclaimer of Warranties
You understand that SpotGamma cannot and does not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, SPOTGAMMA WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY GOODS OR SERVICES OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SPOTGAMMA NOR ANY PERSON ASSOCIATED WITH SPOTGAMMA MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER SPOTGAMMA NOR ANYONE ASSOCIATED WITH SPOTGAMMA REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY GOODS OR SERVICES OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, SPOTGAMMA HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
5. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL SPOTGAMMA OR ITS AGENTS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THIS WEBSITE, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE WEBSITE, ANY CHANGES TO OR INACCESSIBILITY OF THE WEBSITE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE WEBSITE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE WEBSITE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE.
6. Investment Disclaimer
SpotGamma provides general information for educational uses only. Nothing SpotGamma provides is meant to be a recommendation or offer to buy or to sell securities. SpotGamma is not registered as a securities broker-dealer or as an investment adviser either with the U.S. Securities and Exchange Commission or with any state securities regulatory authority and does not attempt or intend to influence the purchase or sale of any security. SpotGamma is neither licensed nor qualified to provide investment advice. As such, SpotGamma accepts no liability whatsoever for any direct or consequential loss arising from any use of information from the Service. No information from SpotGamma is intended as securities brokerage, investment, tax, accounting or legal advice, as an offer or solicitation of an offer to sell or buy, or as an endorsement, recommendation or sponsorship of any company, security, or fund. SpotGamma recommends that persons desiring to trade or invest in securities do so cautiously and in consultation with their qualified financial, legal, and tax advisors. We cannot and do not assess, verify, or guarantee the adequacy, accuracy or completeness of any information, the suitability or profitability of any particular investment, or the potential value of any investment or informational source. You bear responsibility for your own investment research and decisions, and you should seek the advice of a qualified securities professional before making any investment. Before selling or buying any stock or other investment you should consult with a qualified broker or other financial professional to verify pricing information.
7. Data Protection
You agree to indemnify, hold harmless and defend SpotGamma, its affiliates, franchisees, shareholders, directors, officers, employees, successors, assigns, and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of, or relating to: (i) this Agreement; (ii) your use of this Website, including any data or work transmitted or received by you; and (iii) any prohibited use of the Website as set forth in Sections 1(b) and 1(c).
This Agreement is effective upon your acceptance as set forth herein and shall continue in full force until terminated. SpotGamma reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (i) remove or disable access to all or any portion of the Website; (ii) suspend your access to or use of all or any portion of the Website; and (iii) terminate this Agreement. Sections 1, 2, 4, 5, and 6 shall survive any termination of this Agreement.
a. Term. This Agreement will be effective as of the date You use the Website and will remain in effect until terminated.
b. Amendment. You may not amend this Agreement without SpotGamma’s express written consent.
c. Waiver. Except for the Class Action Waiver, no waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
d. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
e. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either party’s last known post office, facsimile or e-mail address. You hereby consent to notice by e-mail.
f. Force Majeure. SpotGamma shall not be liable or responsible to You, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of SpotGamma including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
g. Law. This Agreement is made in and shall be governed by the laws of the State of Connecticut without reference to its conflict of laws provisions.
k. Class Action Waiver. ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR SPOTGAMMA MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER INTERESTED PARTIES, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
l. Governing Law and Rules for Arbitration. The Arbitration Agreement is governed by the Federal Arbitration Act (FAA). Arbitration must proceed only with the American Arbitration Association (AAA) or JAMS. The rules for the arbitration will be the procedures of the chosen arbitration organization. If the organization’s procedures change after the claim is filed, the procedures in effect when the claim was filed will apply. Arbitration hearings will take place in Connecticut. A single arbitrator will be appointed. The arbitrator must:
i. Follow all applicable substantive law, except when contradicted by the FAA;
ii. Follow applicable statutes of limitations;
iii. Honor valid claims of privilege; and
iv. Issue a written decision including the reasons for the award.
The arbitrator’s decision will be final and binding except for any review allowed by the FAA. However, if more than $100,000 was genuinely in dispute, then either you or SpotGamma may choose to appeal to a new panel of three arbitrators. The appellate panel is completely free to accept or reject the entire original award or any part of it. The appeal must be filed with the arbitration organization not later than 30 days after the original award issues. The appealing party pays all appellate costs unless the appellate panel determines otherwise as part of its award. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction
m. Attorneys’ Fees. The Parties acknowledge and agree that in the event either Party takes any action to enforce its rights under this Agreement, the prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees, including those incurred in any resulting appeal, and costs, including its collection costs.
o. Survival. Notwithstanding the termination of this Agreement, the Parties shall be required to carry out any provision hereof that contemplates performance after such termination, and such termination shall not affect any liability or other obligation that have accrued prior to such termination, including, but not limited to, any liability for loss or damage because a prior breach.
STANDARD CONTRACTUAL CLAUSES
Purpose and scope
a. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 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) (1) for the transfer of personal data to a third country.
b. The Parties:
i. the natural or legal person(s) transferring the personal data (each a “data exporter”), and
ii. the entity in a third country receiving the personal data from the data exporter directly, as listed in Annex I.A (the “data importer”)
have agreed to these standard contractual clauses (the “Clauses”).
c. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
d. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
a. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
b. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
a. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
i. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
ii. Clause 8;
iii. Clause 12;
iv. Clause 13;
v. Clause 14.1(c), (d) and (e);
vi. Clause 15(e);
vii. Clause 17
b. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
a. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
b. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
c. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
a. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
b. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
c. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.
8.1 Purpose limitation
a. The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B. It may only process the personal data for another purpose:
i. where it has obtained the data subject’s prior consent;
ii. where necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
iii. where necessary in order to protect the vital interests of the data subject or of another natural person.
a. In order to enable data subjects to effectively exercise their rights pursuant to Clause 9, the data importer shall inform them, either directly or through the data exporter:
i. of its identity and contact details;
ii. of the categories of personal data processed;
iii. of the right to obtain a copy of these Clauses;
iv. where it intends to onward transfer the personal data to any third parties, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
b. Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
c. On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
d. Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimization
a. Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
b. If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
c. The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organizational measures to ensure compliance with this obligation, including erasure or anonymization of the data and all back-ups at the end of the retention period.
8.5 Security of processing
a. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner.
b. The Parties have agreed on the technical and organizational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
c. The data importer shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
d. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its possible adverse effects.
e. In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 12. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.
f. In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.
g. The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.
8.6 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (collectively “sensitive data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymization) and/or additional restrictions with respect to further disclosure.
8.7 Onward transfers
a. The data importer shall not disclose the personal data to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:
i. it is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
ii. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing in question;
iii. the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;
iv. it is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings;
v. it is necessary in order to protect the vital interests of the data subject or of another natural person; or
vi. where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
a. Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
b. The data importer shall make such documentation available to the competent supervisory authority on request.
Data subject rights
a. The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.
b. In particular, upon request by the data subject the data importer shall, free of charge:
i. provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority;
ii. rectify inaccurate or incomplete data concerning the data subject;
iii. erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.
c. Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.
d. The data importer shall not make a decision based solely on the automated processing of the personal data transferred (a “automated decision”), which would produce legal effects concerning the data subject or similarly significantly affect him/her, unless with the explicit consent of the data subject or if authorized to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:
i. inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
ii. implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.
e. Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.
f. The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.
g. If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.
The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
a. Each Party shall be liable to the other Party for any damages it causes the other Party by any breach of these Clauses.
b. Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under Regulation (EU) 2016/679.
c. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
d. The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party that part of the compensation corresponding to its/their responsibility for the damage.
e. The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
a. The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
b. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
a. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
b. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
i. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
ii. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
iii. any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
c. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
d. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
e. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
f. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 15(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
a. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
i. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
ii. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
b. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
c. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority, whether requests have been challenged and the outcome of such challenges, etc.).
d. The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
e. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 13(e) and Clause 15 to inform the data exporter promptly where it is unable to comply with these Clauses.
14.2 Review of legality and data minimization
a. The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 13(e).
b. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
c. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
a. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
b. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 13(f).
c. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
i. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
ii. the data importer is in substantial or persistent breach of these Clauses; or
iii. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
d. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
e. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Choice of forum and jurisdiction
a. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
b. The Parties agree that those shall be the courts of Ireland.
c. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
d. The Parties agree to submit themselves to the jurisdiction of such courts.
A. LIST OF PARTIES
1. Data exporter(s): individuals that create accounts through the www.spotgamma.com website.
Data exporters accept these Clauses on the date when their respective account is created.
2. Data importer:
TenTen Capital LLC
300 Staples Rd
Easton, CT 06612
Activities relevant to the data transferred under these Clauses: 8, 9, 10, 12, 13, 14, and 15
Signature and date: /Matthew Fox/Jan 1, 2022
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred:
Categories of personal data transferred:
The frequency of the transfer:
- The data is transferred on a one-off basis.
Nature and Purpose of the processing:
Registration is handled through a 3rd party authorization service called Caseproof (dba Memberpress) and ActiveCampaign. These two companies then pass these email addresses through an encrypted channel to WPEngine. This data will be stored for up to 10 years, if applicable or for as long as a user has an account or the subject requests the deletion.
C. COMPETENT SUPERVISORY AUTHORITY
The competent supervisory authority is the applicable supervisory authority in the Member State where the data exporter is located.
TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
We are only collecting email addresses as current information at SpotGamma via Caseproof LLC (dba as Memberpress), ActiveCampaign, and WPEngine. Caseproof, ActiveCampaign, and WPEngine take all reasonable measures to protect data and protect it behind firewalls within their server environment.