Data Processing Addendum

For an executable copy of this DPA, please contact us.

The customer agreeing to these terms (“Customer”) has entered into either a Terms of Use Agreement or SaaS Services Agreement with Userback Pty Ltd. (“Userback”) under which Userback has agreed to provide services to Customer (as amended from time to time, the “Agreement”).

This Data Protection Addendum, including its applicable Appendices (the “Addendum”) will be effective and replace any previously applicable data processing and security terms as of the Addendum Effective Date (as defined below). This Addendum forms part of the Agreement.

1. Definitions

For purposes of this Addendum, the terms below shall have the meanings set forth below. Capitalized terms that are used but not otherwise defined in this Addendum shall have the meanings set forth in the Agreement.

1.1 “Addendum Effective Date” means the date on which the parties agreed to this Addendum.

1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.

1.3 “Agreement” means Userback’s Terms of Use, which govern the provision of the Services to Customer, as such terms may be updated by Userback from time to time.

1.4 “Audit Reports” has the meaning given in Section 5.4.4 (Audit Reports).

1.5 “CCPA” means the California Consumer Privacy Act of 2018.

1.6 “Customer Personal Data” means any personal data or personal information of data subjects contained within the data provided to or accessed by Userback by or on behalf of Customer or Customer end users in connection with the Services.

1.7 “Global Data Protection Legislation” means the European Data Protection Legislation, CCPA, and LGPD as applicable to the processing of Customer Personal Data under the Agreement.

1.8 “EEA” means the European Economic Area.

1.9 “EU” means the European Union.

1.10 “European Data Protection Legislation” means the GDPR and other data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein and Norway, and the United Kingdom, applicable to the processing of Customer Personal Data under the Agreement.

1.11 “GDPR” means 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 of EU data subjects and on the free movement of such data, and repealing Directive 95/46/EC.

1.12 “Information Security Incident” means a breach of Userback’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data in Userback’s possession, custody or control. “Information Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

1.13 “LGPD” means the Brazilian General Data Protection Law.

1.14 “Standard Contractual Clauses” or “SCCs” mean the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.

1.15 “Security Documentation” means all documents and information made available by Userback under Section 5.4.1 (Audits).

1.16 “Security Measures” has the meaning given in Section 5.1.1 (Userback’s Security Measures).

1.17 “Services” means the services and/or products to be provided by Userback to Customer under the Agreement.

1.18 “Subprocessors” means third parties authorized under this Addendum to process Customer Personal Data in relation to the Services.

1.19 “Term” means the period from the Addendum Effective Date until the end of Userback’s provision of the Services.

1.20 “Transfer Solution” means the Standard Contractual Clauses or another solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR.

1.21 The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Addendum have the meanings given in the GDPR and LGPD, as applicable, and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses. The terms “personal information”, “Business”, and “Service Provider” have the meanings set forth in the CCPA.

2. Duration of Addendum

This Addendum will take effect on the Addendum Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, Userback’s deletion of all Customer Personal Data as described in this Addendum.

3. Processing of Data

3.1 Roles and Regulatory Compliance; Authorization.

3.1.1 Processor and Controller Responsibilities. This Addendum only applies to the extent that we are processing Customer Personal Data on behalf of Customer. If the European Data Protection Legislation, LGPD, or CCPA apply to the processing of Customer Personal Data, the parties acknowledge and agree that:

(a) the subject matter and details of the processing are described in Appendix 1;

(b) Userback is a processor of that Customer Personal Data under the European Data Protection Legislation or LGPD, and/or a Service Provider with respect to that Customer Personal Data under the CCPA, as applicable;

(c) Customer is either a controller or processor of that Customer Personal Data under European Data Protection Legislation or LGPD, and/or a Business with respect to that Customer Personal Data under the CCPA, as applicable; and

(d) each party will comply with the obligations applicable to it under the applicable Global Data Protection Legislation with respect to the processing of that Customer Personal Data.

3.1.2 Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to Userback that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of Userback as another processor and its consent to Userback’s onward transfers of Customer Personal Data to its Subprocessors, have been authorized by the relevant controller.

3.2 Scope of Processing.

3.2.1 Customer’s Instructions. By entering into this Addendum, Customer instructs Userback to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorized by the Agreement, including this Addendum and its Appendices; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by Userback as constituting instructions for purposes of this Addendum.

3.2.2 Userback’s Compliance with Instructions. Userback will only process Customer Personal Data in accordance with Customer’s instructions described in Section 3.2.1 (including with regard to data transfers) (“Customer’s Instructions”) unless the applicable Global Data Protection Legislation to which Userback is subject requires other processing of Customer Personal Data by Userback, in which case Userback will notify Customer (unless that law prohibits Userback from doing so on important grounds of public interest).

4. Data Deletion

4.1 Deletion on Termination. Unless otherwise set forth in the Agreement, upon expiration of the Term, Customer instructs Userback to delete all Customer Personal Data (including existing copies) from Userback’s systems as required by and in accordance with applicable law as soon as reasonably practicable, unless applicable law prevents Userback from deleting such data. To the extent that Customer is bound by laws or regulations that would require Userback to retain Customer Personal Data after expiration of the Term and Customer does not inform Userback of such retention obligations, Customer shall be solely liable for any deletion of such data by Userback in accordance with this Section 4.1.

5. Data Security

5.1 Userback’s Security Measures, Controls and Assistance.

5.1.1 Userback’s Security Measures. Userback will implement and maintain technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data as described in Appendix 2 (the “Security Measures”). Userback may update or modify the Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.

5.1.2 Security Compliance by Userback Staff. Userback will grant access to Customer Personal Data only to employees, contractors, and Subprocessors who need such access for the scope of their performance, and are subject to appropriate confidentiality arrangements.

5.1.3 Userback’s Security Assistance. Userback will (taking into account the nature of the processing of Customer Personal Data and the information available to Userback) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under Global Data Protection Legislation, including Articles 32 to 34 (inclusive) of the GDPR and Articles 6 and 46 of the LGPD, by:

(a) implementing and maintaining the Security Measures in accordance with Section 5.1.1 (Userback’s Security Measures);

(b) complying with the terms of Section 5.2 (Information Security Incidents); and

(c) providing Customer with the Security Documentation in accordance with Section 5.4.1 (Audits) and the Agreement, including this Addendum.

5.2 Information Security Incidents.

5.2.1 Information Security Incident Notification. If Userback becomes aware of an Information Security Incident, Userback will: (a) notify Customer of the Information Security Incident without undue delay after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the case of such Information Security Incident, minimize harm and prevent a recurrence.

5.2.2 Details of Information Security Incident. Notifications made pursuant to this Section 5.2 (Information Security Incidents) will describe, to the extent reasonably practicable, details of the Information Security Incident, including (i) the nature of the Information Security Incident including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned; (ii) the name and contact details of the data protection officer or other contact point where more information can be obtained, (iii) the likely consequences of Information Security Incident; (iv) steps taken, or proposed to be taken, to mitigate the potential risks and steps Userback recommends Customer take to address the Information Security Incident including, where appropriate, measures to mitigate its possible adverse effects.

5.2.3 Notification. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third-party notification obligations related to any Information Security Incident(s).

5.2.4 No Acknowledgement of Fault by Userback. Userback’s notification of or response to an Information Security Incident under this Section 5.2 (Information Security Incidents) will not be construed as an acknowledgment by Userback of any fault or liability with respect to the Information Security Incident.

5.3 Customer’s Security Responsibilities and Assessment.

5.3.1 Customer’s Security Responsibilities. Customer agrees that, without prejudice to Userback’s obligations under Section 5.1 (Userback’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents):

(a) Customer is solely responsible for its use of the Services, including:

(i) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data;

(ii) securing the account authentication credentials, systems and devices Customer uses to access the Services; and

(iii) securing Customer’s systems and devices Userback uses to provide the Services; and

(iv) backing up its Customer Personal Data.

(b) Userback has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of Userback’s and its Subprocessors’ systems (for example, offline or on-premises storage).

5.3.2 Customer’s Security Assessment.

(a) Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures and Userback’s commitments under this Section 5 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the applicable Global Data Protection Legislation.

(b) Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Userback as set out in Section 5.1.1 (Userback’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Personal Data.

5.4 Reviews and Audits of Compliance.

5.4.1 Audits. Customer may audit Userback’s compliance with its obligations under this Addendum up to once per year. In addition, to the extent required by the applicable Global Data Protection Legislation, including where mandated by Customer’s supervisory authority, Customer or Customer’s supervisory authority may perform more frequent audits (including inspections). Userback will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to the Services.

5.4.2 Objections to Third Party Auditor. If a third party is to conduct the audit, Userback may object to the auditor if the auditor is, in Userback’s reasonable opinion, not suitably qualified or independent, a competitor of Userback, or otherwise manifestly unsuitable. Such objection by Userback will require Customer to appoint another auditor or conduct the audit itself.

5.4.3 Request for Audit. To request an audit, Customer must submit a detailed proposed audit plan to Userback at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Userback will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Userback security, privacy, employment or other relevant policies). Userback will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 (Reviews and Audits of Compliance) shall require Userback to breach any duties of confidentiality.

5.4.4 Audit Reports. If the requested audit scope is addressed in an SSAE 16/18/ISAE 3402 Type 2, AICPA SOC 2 (SOC for Service Organizations: Trust Services Criteria), ISO, NIST or similar audit report performed by a qualified third-party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and Userback confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.

5.4.5 Conduct of Audit. The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and Userback’s health and safety or other relevant policies, and may not unreasonably interfere with Userback business activities.

5.4.6 Conditions of Audit. Customer will promptly notify Userback of any non-compliance discovered during the course of an audit and provide Userback any audit reports generated in connection with any audit under this Section 5.4 (Reviews and Audits of Compliance), unless prohibited by the applicable Global Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Addendum. The audit reports and any Userback information shared during the audit process are Confidential Information of the parties under the terms of the Agreement.

5.4.7 Expenses of Audit. Any audits are at Customer’s expense. Customer shall reimburse Userback for any time expended by Userback or its Subprocessors in connection with any audits or inspections under this Section 5.4 (Reviews and Audits of Compliance) at Userback’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.

5.4.8 Standard Contractual Clauses. The parties agree that this Section 5.4 (Reviews and Audits of Compliance) shall satisfy Userback’s obligations under the audit requirements of the Standard Contractual Clauses applied to Data Importer under Clause.

6. Impact Assessments and Consultations

Userback will (taking into account the nature of the processing and the information available to Userback) reasonably assist Customer in complying with its obligations under the applicable Global Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:

6.1 Audit Reports and Security Measures. Making available for review copies of the Audit Reports or other documentation describing relevant aspects of Userback’s information security program and the security measures applied in connection therewith; and

6.2 Additional Information. Providing the information contained in the Agreement including this Addendum.

7. Data Subject Rights

7.1 Customer’s Responsibility for Requests. During the Term, if Userback receives any request from a data subject in relation to Customer Personal Data, Userback will, at its sole discretion, (i) advise the Customer of the request, (ii) advise the data subject to submit his or her request to Customer, and/or (iii) notify the data subject that his or her request has been forwarded to the Customer. Customer will be responsible for responding to any such request.

7.2 Userback’s Data Subject Request Assistance. Userback will (taking into account the nature of the processing of Customer Personal Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to fulfill its obligation under the applicable Global Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in Chapter III of the GDPR, Articles 18 and 19 of the LGPD, or Section 1798.105 of the CCPA. Customer shall reimburse Userback for any such assistance beyond providing self-service features included as part of the Services at Userback’s then-current professional services rates, which shall be made available to Customer upon request.

8. Data Transfers

8.1 Data Storage and Processing Facilities. Userback may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Customer Personal Data anywhere Userback or its Subprocessors maintains facilities.

8.2 Transfers of Data Out of the EEA.

8.2.1 Userback’s Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 8.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA or Switzerland, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), Userback will make such transfers in accordance with a Transfer Solution, and make information available to Customer about such Transfer Solution upon request.

8.2.2 Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that if under European Data Protection Legislation Userback reasonably requires Customer to use another Transfer Solution offered by Userback (other than the Standard Contractual Clauses, which are attached hereto as Appendix 3 and incorporated by reference to the extent that Customer is transferring Customer Personal Data out of the EAA or Switzerland to Userback) and Userback reasonably requests that Customer take any action (which may include execution of documents) required to give full effect to such solution, Customer will do so.

8.3 Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Standard Contractual Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), Userback will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer’s Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Standard Contractual Clauses. For the purposes of the Standard Contractual Clauses, Customer and Userback agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities and (ii) Userback or its relevant Affiliate will act on its own behalf and/or on behalf of Userback’s Affiliates as the data importers.

9. Subprocessors

9.1 Consent to Subprocessor Engagement. Customer generally authorizes the engagement of any other third parties as Subprocessors and authorizes onward transfer of Customer Personal Data to any Subprocessors engaged by Userback. If Customer has entered into Standard Contractual Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting by Userback of the processing of Customer Personal Data if such consent is required under the Standard Contractual Clauses.

9.2 Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at https://userback.tomorrow-happens.studio/dpa-subprocessors (as may be updated by Userback from time to time in accordance with this Addendum).

9.3 Requirements for Subprocessor Engagement. When engaging any Subprocessor, Userback will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this Addendum) with respect to the protection of Customer Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. Userback shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.

9.4 Opportunity to Object to Subprocessor Changes.

When any new Subprocessor is engaged during the Term, Userback will, at least thirty (30) days before the new Subprocessor processes any Customer Personal Data, notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform).

Customer may object to any new Subprocessor by providing written notice to Userback within the thirty (30) day period prior to the engagement of the Subprocessor as described above. In the event Customer objects to a new Subprocessor, Customer and Userback will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to Userback.

10. Processing Records

10.1 Userback’s Processing Records. Customer acknowledges that Userback is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Userback is acting and, where applicable, of such processor’s or controller’s local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to Userback, and will ensure that all information provided is kept accurate and up-to-date.

11. Liability

11.1 Liability Cap. The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with the Agreement, this Addendum, and the Standard Contractual Clauses if entered into as described in Section 8.2 (Transfers of Data Out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).

11.2 Liability Cap Exclusions. Nothing in Section 11.1 (Liability Cap) will affect any party’s liability to data subjects under the third-party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation.

12. Analytics

Customer acknowledges and agrees that Userback may create and derive from processing related to the Services anonymized and/or aggregated data that does not identify Customer or any natural person, and use, publicize or share with third parties such data to improve Userback’s products and services and for its other legitimate business purposes.

13. Notices

Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Userback to Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to Userback’s primary points of contact with Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.

14. Effect of These Terms

Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.

Appendix 1

Subject Matter and Details of the Data Processing

This Appendix 1 is incorporated into the Addendum, and also forms part of the Standard Contractual Clauses (if such Standard Contractual Clauses are applicable to Customer).

Data Importer: The Data Importer (or Service Provider/Processor) is Userback, a provider of web-based customer feedback solutions.

Data Exporter: The Data Exporter (or Business/Controller) is the Customer that is a party to the Addendum.

Subject Matter: Userback’s provision of the Services to Customer as set forth in the Agreement and the Addendum.

Duration of the Processing: The Term plus the period from the expiry of the Term until deletion of all Customer Personal Data by Userback in accordance with the Addendum.

Nature and Purpose of the Processing: Userback will receive, process, and store Customer Personal Data for the purposes of providing the Services to Customer in accordance with the Agreement and the Addendum, to communicate with Customer and its end users, to provide customer service, to monitor, maintain, and improve the Services, and to otherwise fulfill its obligations under the Agreement.

Categories of Data:

First and last name
Title
Position
Employer
Contact information (company, email, phone, physical business address)
IT information (IP addresses, usage, cookies, online navigation, location, and browser data)
Other electronic data submitted, stored, sent, or received by an end-user (which may include special categories of personal data under the GDPR, or sensitive personal data under the LGPD, to the extent that such data is submitted, stored, sent, or received by an end-user; Userback does not request or require any sensitive or special categories of personal data for provision of the Services)
Information related to invoices or payments made for the Userback service

Data Subjects:

Employees, agents, advisors, and/or freelancers of Customer (who are natural persons), and/or individuals about whom data is provided to Userback via the Services by (or at the direction of) Customer
End users authorized by Customer to use the Services

Subprocessors: Customer hereby consents to subprocessing by the entities set out at https://userback.tomorrow-happens.studio/dpa/subprocessors

Appendix 2

Security Measures

This Appendix 2 is incorporated into the Addendum, and also forms part of the Standard Contractual Clauses (if such Standard Contractual Clauses are applicable to Customer).

As from the Addendum Effective Date, Userback will implement and maintain the technical and organizational Security Measures set out at https://userback.tomorrow-happens.studio/security. Userback may update or modify such Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.

Appendix 3

Standard Contractual Clauses

SECTION I

Clause 1

Purpose and scope

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.
The Parties:
1. 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
2. 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’).
These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

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.
These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
2. Clause 8 – Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
3. Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
4. Clause 12 – Modules Two and Three: Clause 12(a), (d) and (f);
5. Clause 13;
6. Clause 15.1(c), (d) and (e);
7. Clause 16(e);
8. Clause 18 – Modules Two and Three: Clause 18(a);
Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

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.

Clause 6

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.

Clause 7

Docking clause

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.
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.
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

Clause 8

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.

MODULE TWO: Transfer controller to processor
8.1 Instructions

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.
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.

8.3 Transparency

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.

8.4 Accuracy

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

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.
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.
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.
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:

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;
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;
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
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

The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
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.
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.
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.
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.

MODULE THREE: Transfer processor to processor
8.1 Instructions

The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.

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 controller, as communicated to the data importer by the data exporter, or from the data exporter.

8.3 Transparency

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 personal data, the data exporter 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.

8.4 Accuracy

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 controller 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

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, 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 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 or the controller. 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.
The data importer shall grant access to the 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.
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, without undue delay, the data exporter and, where appropriate and feasible, the controller 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 data breach, including 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.
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 its controller so that the latter may in turn 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

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by 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:

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;
the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
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
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

The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.
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 controller.
The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
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.
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.

Clause 9

Use of sub-processors
MODULE TWO: Transfer controller to processor

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 thirty (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.
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.
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.
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.
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.

MODULE THREE: Transfer processor to processor

The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least thirty (30) days in advance, thereby giving the controller 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 controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), 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.
The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. 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.
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.
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.

Clause 10

Data subject rights
MODULE TWO: Transfer controller to processor

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.
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.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

MODULE THREE: Transfer processor to processor

The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. 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.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.

Clause 11

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 authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

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.
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:
1. 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;
2. refer the dispute to the competent courts within the meaning of Clause 18.
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.
The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
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.

Clause 12 Liability
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

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.
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.
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.
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.
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.
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.
The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

[Where the data exporter is established in an EU Member State:] 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.
[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.
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

Clause 14

Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

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.
The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
1. 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;
2. 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;
3. 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.
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.
The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
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). [For Module Three: The data exporter shall forward the notification to the controller.]
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 [for Module Three:, if appropriate in consultation with the controller]. 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 [for Module Three: the controller or] 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.

Clause 15

Obligations of the data importer in case of access by public authorities
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

15.1 Notification

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:
1. 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
2. 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.
[For Module Three: The data exporter shall forward the notification to the controller.]
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.
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.). [For Module Three: The data exporter shall forward the information to the controller.]
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.
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

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).
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. [For Module Three: The data exporter shall make the assessment available to the controller.]
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

Clause 16

Non-compliance with the Clauses and termination

The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
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).
The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
1. 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;
2. the data importer is in substantial or persistent breach of these Clauses; or
3. 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 [for Module Three: and the controller] 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.
[For Modules Two and Three: 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.
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.

Clause 17

Governing law
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.

Clause 18

Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor

Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
The Parties agree that those shall be the courts of Ireland.
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.
The Parties agree to submit themselves to the jurisdiction of such courts.

ANNEX I

A. LIST OF PARTIES

Data exporter(s): You, as identified when creating an account with Userback.

Data importer(s): Userback, an Australian entity with registered address at 9 Aspire Street, Rochedale QLD 4123. Userback can be contacted via the registered address listed above, or via email at contact@userback.io.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

The categories of data subjects whose personal data is transferred are specified in Appendix 1 of the DPA.

Categories of personal data transferred

The categories of personal data transferred are specified in Appendix 1 of the DPA.

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.

No sensitive data will be transferred from the data exporter to the data importer.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

The frequency of the transfer will be on a continuous basis.

Nature of the processing

The nature of the processing is specified in Appendix 1 of the DPA.

Purpose(s) of the data transfer and further processing

The purposes of the data transfer and further processing are to provide the Services in accordance with the Agreement

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

The period for which the personal data will be retained is specified in Appendix 1 of the DPA.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

The subject matter and nature of the processing by sub-processors are specified in Appendix 1 of the DPA. The duration of the processing carried out by sub-processors will be until thirty (30) days following the termination or expiration of the Agreement.

C. COMPETENT SUPERVISORY AUTHORITY

The competent supervisory authority, in accordance with Clause 13, must be (i) the supervisory authority applicable to the data exporter in its EEA country of establishment or, (ii) where the data exporter is not established in the EEA, the supervisory authority applicable in the EEA country where the data exporter’s EU representative has been appointed pursuant to Article 27(1) of the GDPR, or (iii) where the data exporter is not obliged to appoint a representative, the supervisory authority applicable to the EEA country where the data subjects relevant to the transfer are located.

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

The technical and organisational security measures implemented by the data importer are described in Appendix 2 of the DPA.

ANNEX III

LIST OF SUB-PROCESSORS

The list of sub-processors used by the data importer is specified in Appendix 1 of the DPA.

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