Last updated: September 24, 2021
This Data Processing Agreement ("DPA") is a supplement to, and made a part of, the commercial services agreement (the “Agreement”) between User Interviews, Inc. (“User Interviews", "Data Importer" or "Processor") and the Customer named in such commercial services agreement ("Customer", "Data Exporter" or "Controller") and is made and entered into as of the date of the Agreement ("Effective Date”).
In the course of providing the Services to Customer pursuant to the Agreement, User Interviews may Process Personal Data on behalf of Customer. This DPA applies when Personal Data is Processed by User Interviews on behalf of Customer.
(a) “Data Protection Law” means all applicable legislation relating to data protection and privacy including without limitation the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time.
(b) “Member State” means a Member State of the European Union.
(c) “Personal Data,” shall mean any information relating to an identified or identifiable natural person (“Data Subject”). An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to his or her physical, physiological, genetic, mental, economic, cultural or social identity. Personal Data includes Special Categories of Personal Data;
(d) “Process” or “Processing” shall mean any operation or set of operations which is performed upon personal data, whether or not by automated means, such as collection, recording, organization,structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, disclosure or dissemination or otherwise making available, alignment or combination, restriction, transfer, and erasure or destruction;
(e) “Special Categories of Personal Data” shall mean Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the Processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.
(f) “Subprocessor” shall mean any entity which provides processing services to User Interviews in furtherance of User Interviews’ processing on behalf of Customer;
(g) “Personal Data Breach” shall mean 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; and
(h) “EU General Data Protection Regulation” or “GDPR” shall mean the Regulation (EU) 2016/679
Other terms used in this DPA but not defined herein shall have the meaning ascribed to such terms in the GDPR.
2. Subject Matter and Duration of Processing
The subject matter and duration of the processing in connection with the Services are set forth in the Agreement. User Interviews will process Personal Data to provide the Services during the term of the Agreement (except as otherwise permitted by this DPA or required by law).
3. Nature and Purpose of Processing
The Personal Data transferred by Customer will be processed by User Interviews to provide the Services to Customer in accordance with the Agreement, and this DPA (the “Purpose”) and Customer may make Personal Data available to User Interviews in connection with this Purpose.
4. Type of Personal Data and Categories of Data Subjects
Customer may submit Personal Data to User Interviews through the Services. The Personal Data transferred from Customer to User Interviews is determined and controlled by Customer and may include the following categories of data: name, telephone number, email address, birth date, password, gender, marital status, education, household income, city, address, occupation, employment status, income type, living situation, children, user names, devices or products owned or used, and subscriptions; and may include Special Categories of Personal Data as determined by Customer.
Personal Data excludes, and this DPA does not apply to, any data of or relating to “Participants” or “Testers”with whom User Interviews has an independent commercial relationship, as such terms are defined in the Agreement.
5. Obligations of Customer
Within the scope of the Agreement and in connection with its use of the Services, Customer shall be solely responsible for complying with all Data Protection Laws, in particular regarding the disclosure and transfer of Personal Data to User Interviews and the Processing of Personal Data. Customer’s instructions for the Processing of Personal Data shall comply with applicable Data Protection Laws.
6. Obligations of User Interviews
With respect to the Processing of Personal Data provided by Customer, User Interviews agrees to:
a) Process the Personal Data only on behalf of Customer and strictly in compliance with Customer’s documented instructions, including with regard to transfers of Personal Data to a third country or international organization(the parties ‘Agreement forming the basis of such instruction) unless User Interviews is required to process the Personal Data by Data Protection Law, in which case, User Interviews shall inform Customer of that legal requirement before processing, unless applicable Data Protection Laws prohibit such information on important grounds of public interest;
b) inform Customer if User Interviews believes an instruction from Customer infringes applicable Data Protection Laws;
c) restrict access to Personal Data to User Interviews personnel who need to access the Personal Data to provide the Services to Customer. User Interviews will ensure that any User Interviews personnel who process Personal Data: (i) are bound in writing by confidentiality, data protection, and data security obligations,which are at least as protective as this DPA; and (ii) will only process Personal Data on Customer’s instructions, unless required to do so by applicable Data Protection Laws.
d) implement appropriate technical and organizational security measures to protect the Personal Data from (i) accidental or unlawful destruction, and (ii) loss, unauthorized alteration, unauthorized disclosure of, or unauthorized access; and
e) upon reasonable request, make available to Customer information necessary to demonstrate compliance with the obligations in this Section.
7. Data Subject Requests.
To the extent permitted by applicable Data Protection Law, User Interviews shall provide reasonable and timely assistance to Customer to enable Customer to respond to: (i) any request from an individual or Data Subject to exercise any of its rights under applicable Data Protection Laws; and (ii) any other correspondence, enquiry or complaint received from an individual or Data Subject, regulator, court or other third party in connection with the Processing of the Personal Data. In the event that any such communication is made directly to User Interviews, User Interviews shall instruct such individual to contact Customer directly.
Customer acknowledges and agrees that, in connection with the performance of the Services under the Agreement, Personal Data will be transferred to User Interviews and its Subprocessors in the United States. User Interviews and its Subprocessors may access and perform Processing of Personal Data on a global basis as necessary to provide the Services. The Standard Contractual Clauses (attached as Appendix 2) will apply with respect to Personal Data that is transferred outside the European Economic Area, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data. To the extent that Customer or User Interviews are relying on a specific statutory mechanism to normalize international data transfers and that mechanism is subsequently revoked, or held in a court of competent jurisdiction to be invalid, Customer and User Interviews agree to cooperate in good faith to pursue a suitable alternate mechanism that can lawfully support the transfer.
9. Personal Data Breaches.
Upon becoming aware of a Personal Data Breach, User Interviews shall inform Customer without undue delay (and, in any event, within 32 hours) and shall provide timely information and cooperation as Customer may require in order for Customer to fulfill its Personal Data Breach reporting obligations under and in accordance with applicable Data Protection Laws and relevant contractual obligations of Customer. User Interviews shall cooperate with Customer in taking all appropriate measures and actions as are necessary to remedy or mitigate the effects of the Personal Data Breach, shall manage and modify its systems to remedy or mitigate such Personal Data Breach and the likelihood of future similar Personal Data Breaches, and shall keep Customer informed of all developments in connection with the Personal Data Breach.
User Interviews shall, in accordance with applicable Data Protection Laws and in response to a reasonable written request by Customer, make available to Customer such information in User Interview’s possession or control related to User Interviews’ compliance with the obligations of this DPA in relation to its Processing of Personal Data. Customer may, upon written request and at least thirty (30) days’ notice to User Interviews, during regular business hours and without interrupting User Interviews’ business operations, conduct an inspection of User Interviews’ business operations or have the same conducted by a qualified third party auditor subject to User Interviews’ approval, which shall not be unreasonably withheld. User Interviews shall, upon Customer’s written request and on at least thirty (30) days’ notice to User Interviews, provide Customer with all information necessary for such audit, to the extent that such information is within User Interviews’ control and User Interviews is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party. The results of any audit pursuant to this section will be provided to User Interviews and shall be considered the confidential information of User Interviews. Customer will not exercise its audit rights more than once in any twelve (12) calendar month period, except (i) if and when required by instruction of a competent data protection authority; or (ii) Customer believes a further audit is necessary due to a Personal Data Breach suffered by User Interviews. Notwithstanding anything else, Customer understands and agrees that User Interviews operates a multi-tenant environment and User Interviews shall not be required to conduct, or permit Customer or its auditors to conduct, any activities that could impair the security or confidentiality of the information of any of User Interviews’ other customers.
User Interviews shall not subcontract any processing of Personal Data to a third party Subprocessor without the prior written consent of Customer. Customer agrees that User Interviews may engage third party Subprocessors to process the Personal Data provided that: (i) User Interviews will provide to Customer an up-to-date list of its Subprocessors upon request; and (ii) User Interviews provides at least thirty (30) days' prior written notice of the addition of any new Subprocessor. If, within thirty (30) days of User Interviews’ notice to Customer of a new Subprocessor, Customer notifies User Interviews of its objection to the engagement of such third party Subprocessor on reasonable grounds, then: i) User Interviews will not engage the Subprocessor; or ii) Customer may elect to terminate the Agreement without penalty; provided that such termination right must be exercised within sixty (60) days of the date of the notice. In all cases, User Interviews shall impose data protection terms by written agreement on any Subprocessor it engages that at a minimum meet the requirements provided for by this DPA,and User Interviews shall remain fully liable for any breach of this DPA caused by its Subprocessor. Customer authorizes User Interviews to use the Subprocessors that are engaged at the time of the Effective Date of this DPA (as outlined in Appendix 1).
12. Data Protection Impact Assessments
Upon Customer's request, User Interviews shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer's obligation under applicable Data Protection Laws to carry out a data protection impact assessment related to Customer's use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to User Interviews. User Interviews shall provide reasonable assistance to Customer in the cooperation or prior consultation with supervisory authorities to the extent required under applicable Data Protection Laws.
13. Post-termination Obligations
On the termination of the Services, User Interviews and any Subprocessors shall, at the choice of Customer (subject to the limitations described in the Agreement or as required by law), securely destroy or return all Personal Data from Customer and, upon request, demonstrate to Customer that it has taken such measures. In the event that User Interviews must retain the Personal Data, User Interviews agrees to preserve the confidentiality of the Personal Data retained by it.
User Interviews (the "Indemnifying Party") shall defend and fully indemnify Customer from and against all loss, harm, cost (including reasonable attorney's fees), fines, expense, and liability that Customer may suffer or incur arising as a result of User Interviews’ breach or non-compliance with this DPA. The foregoing shall be subject to the indemnification procedures set forth in the Agreement.
This DPA shall survive so long as User Interviews processes Personal Data on behalf of Customer.
Subprocessors with access to researcher and participant Personal Data:
Name / Nature of processing / Territory
Subprocessors with access to researcher Personal Data only:
Name / Nature of processing / Territory
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) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘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 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(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 organisational measures, to satisfy its obligations under these Clauses.
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the 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. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. 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 return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties 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 subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) 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 breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 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 and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed 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’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer 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 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
(a) 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 authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) 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 and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) 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.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, 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 authorising 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 authorising 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 organisational 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 organisational 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 16(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/ies, 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 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(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 14(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 14(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 Austria.
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 Austria.
(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
The data exporter is the entity identified as the Customer in the DPA.
Signature & Date: By entering into the Agreement, data exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Name: User Interviews, Inc.
Address: 320 7th Ave., #254, Brooklyn NY 11215, USA
Contact person’s name, position and contact details: Data Protection Officer, firstname.lastname@example.org
Activities relevant to the data transferred under these Clauses: Provision of the Services.
Signature and date: By entering into the Agreement, data importer is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
The personal data transferred concern the following categories of data subjects: the data subjects include data exporter’s users of the Services, employees, and other data exporter contacts uploaded or otherwise provided to the Services.
Categories of personal data transferred
The personal data transferred concern the following categories of personal data: any personal data of the data subjects uploaded or otherwise provided to the Services.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The personal data transferred concern the following sensitive data: any sensitive data associated with the data subjects uploaded or otherwise provided to the Services. The technical and organisational security measures implemented by the data importer are as described in the DPA and Security Policy.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Data is transferred on a continuous basis.
Nature of the processing
Collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of personal data (whether or not by automated means).
Purpose(s) of the data transfer and further processing
Data is transferred and processed in order to provide the Services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Data will be retained for as long as reasonably necessary to provide the Services or as required by law. Upon deactivation of a data subject’s account or termination of the Agreement, personal data will be deleted after 90 days, except to the extent data importer is required to retain any information under applicable law.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
See Appendix 1. Data will be processed for the duration specified in this Annex I.B.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
The competent supervisory authority shall be the authority that has supervision over Customer in accordance with Clause 13.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The technical and organisational security measures implemented by the data importer are as described in the DPA and Security Policy.
LIST OF SUB-PROCESSORS
The controller has authorised the use of the following sub-processors:
See Appendix 1.