This Data Processing Annex sets forth the terms and conditions with regard to the Processing of Personal Data that is transferred from an EU to a non-EU jurisdiction, in accordance with the requirements of Data Protection Laws and Regulations and forms part of the Subscription Services Agreement between Customer and Clarabridge for the purchase of certain online services on a subscription basis (the “Agreement”), with respect to the subject matter identified herein and in the attachment hereto and appendix thereto (the “DPA”). All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
In the course of providing the Services to Customer pursuant to the Agreement, Clarabridge may Process Personal Data on behalf of Customer. The Parties agrees to comply with the following provisions with respect to any Personal Data submitted by or for Customer to the Subscription Services or collected and Processed by or for Customer using the Subscription Services.
1. Processing of Personal Data
1.1 Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Data Controller, Clarabridge is a Data Processor and that Clarabridge or members of the Clarabridge Group will engage Sub-processors pursuant to the requirements set forth in section 4 “Sub-processors” below.
1.2 Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data.
1.3 Clarabridge’s Processing of Personal Data. Clarabridge shall only Process Personal Data on behalf of and in accordance with Customer’s instructions and shall treat Personal Data as Confidential Information. Customer instructs Clarabridge to Process Personal Data for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Authorized End Users in their use of the Services; and (iii) subject to section 7.3 of this DPA, Processing to comply with other reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
2. Rights of Data Subjects
2.1 Correction, Blocking and Deletion To the extent Customer, in its use of the Services, does not have the ability to correct, amend, block or delete Personal Data, as required by Data Protection Laws and Regulations, Clarabridge will use reasonable endeavours to comply with any commercially reasonable request by Customer to facilitate such actions to the extent Clarabridge is legally permitted to do so. To the extent legally permitted, Customer shall be responsible for the service hours incurred and any costs arising from Clarabridge’s provision of such assistance.
2.2 Data Subject Requests. Clarabridge shall, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject for access to, correction, amendment or deletion of that person’s Personal Data. Clarabridge shall not respond to any such Data Subject request without Customer’s prior written consent except to confirm that the request relates to Customer. Clarabridge shall provide Customer with commercially reasonable cooperation and assistance in relation to handling of a Data Subject’s request for access to that person’s Personal Data, to the extent legally permitted and to the extent Customer does not have access to such Personal Data through its use of the Services. To the extent legally permitted, Customer shall be responsible for the service hours incurred and any costs arising from Clarabridge’s provision of such assistance.
3.1 Confidentiality. Clarabridge shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Clarabridge shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
3.2 Limitation of Access. Clarabridge shall use commercially reasonable endeavours to ensure that Clarabridge’s access to Personal Data is limited to those personnel who require such access to perform the Agreement and/or any Order Forms.
4.1 Appointment of Sub-processors Customer acknowledges and agrees that (a) Clarabridge’s Affiliates may be retained as Sub-processors; and (b) Clarabridge and Clarabridge’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services.
4.2 Liability Clarabridge shall be liable for the acts and omissions of its Sub-processors to the same extent Clarabridge would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
5.1 Controls for the Protection of Personal Data. Clarabridge shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Personal Data, as set forth in the Security & Privacy Documentation. Clarabridge regularly monitors compliance with these safeguards. Clarabridge will not materially decrease the overall security of the Services during the term of the Agreement.
5.2 Third-Party Certifications and Audits Clarabridge has obtained the third-party certifications and audits set forth in the Security & Privacy Documentation. Upon Customer’s written request at reasonable intervals, Clarabridge will provide a copy of Clarabridge’s then most recent third-party audits or certifications, as applicable, or any summaries thereof, that Clarabridge generally makes available to its customers at the time of such request.
6. Security Breach Management and Notification
Clarabridge maintains security incident management policies and procedures specified in the Security & Privacy Documentation and shall, to the extent permitted by law, promptly notify Customer of any actual or reasonably believed unauthorized disclosure of Personal Data by Clarabridge or its Sub-processors of which Clarabridge becomes aware (a “Security Breach”). To the extent such Security Breach is caused by a violation of the requirements of this DPA by Clarabridge, Clarabridge shall make commercially reasonable endeavours to identify and remediate the cause of such Security Breach.
7. Additional Terms for EU Personal Data
7.1 Application of Standard Contractual Clauses. The Standard Contractual Clauses in Attachment 1 (the “Standard Contractual Clauses”) and the additional terms in this Section 7 will apply to the Processing of Personal Data by Clarabridge in the course of providing the Subscription Services:
7.1.1 The Standard Contractual Clauses apply only to Personal Data that is transferred from the European Economic Area (EEA) to outside the EEA, either directly or via onward transfer, to any country or recipient: (i) not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the EU Data Protection Directive), and (ii) not covered by a suitable framework recognized by the relevant authorities or courts as providing an adequate level of protection for personal data, including but not limited to Binding Corporate Rules for Processors. The Standard Contractual Clauses shall only apply where the Customer (or its Affiliate, as applicable) is required to comply with Data Protection Laws and Regulations in respect of the Processing of the Personal Data by Clarabridge and its Sub-processors on behalf of the Customer (or its Affiliate, as applicable).
7.1.2 The Standard Contractual Clauses apply to (i) the Customer that has executed the Standard Contractual Clauses as a Data Exporter and, (ii) all Affiliates (as defined in the Agreement) of Customer established within the European Economic Area (EEA) and Switzerland that have purchased Subscription Services on the basis of an Order Form. For the purpose of the Standard Contractual Clauses and this Section 7, the aforementioned entities shall be deemed “Data Exporters”.
7.2 Objective. The objective of Processing of Personal Data by Clarabridge is the performance of the Subscription Services pursuant to the Agreement and any Order Forms.
7.3 Instructions. This DPA and the Agreement and any Order Forms are Data Exporter’s complete and final instructions to Data Importer for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Data Exporter to process Personal Data: (a) processing in accordance with the Agreement and applicable Order Form(s); and (b) processing initiated by Authorized End Users in their use of the Subscription Services.
7.4 Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, the Data Exporter acknowledges and expressly agrees that Clarabridge’s Affiliates may be retained as Sub-processors; and (b) Clarabridge and Clarabridge’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Subscription Services.
7.4.1 Current Sub-processors and Notice of New Sub-processors. Along with Clarabridge Affiliates, Softlayer Technologies, Inc. and InfoCepts, LLC are the current Sub-processors utilized by Clarabridge to provide the Subscription Services. Data Importer shall provide Data Exporter with notice of any new Sub-processor(s) that are not Clarabridge Affiliates to Process Personal Data that are to be utilized by Clarabridge in connection with the provision of the Subscription Services at least ten (10) business days prior to such utilization.
7.4.2 Objection Right for new Sub-processors. If Data Exporter has a reasonable basis to object to Data Importer’s use of such new Sub-processor, Data Exporter shall notify Data Importer promptly in writing within 10 business days after receipt of Data Importer’s notice. In the event Data Exporter objects to a new Sub-processor(s) and that objection is not unreasonable Data Importer will use reasonable endeavours to make available to Data Exporter a change in the affected Subscription Services or recommend a commercially reasonable change to Data Exporter’s configuration or use of the affected Subscription Services to avoid processing of Personal Data by the objected-to new Sub processor without unreasonably burdening Data Exporter. If Data Importer is unable to make available such change within a reasonable period of time, which shall not exceed sixty (60) days, Data Exporter may terminate the applicable Order Form(s) in respect only to those Subscription Services which cannot be provided by Data Importer without the use of the objected-to new Sub-processor, by providing written notice to Data Importer. Data Exporter shall receive a refund of any prepaid fees for the period following the effective date of termination in respect of such terminated Subscription Services.
7.4.3 Sub-processor Agreements. The Parties agree that the copies of the Sub-processor agreements that must be sent by the Data Importer to the Data Exporter pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by the Data Importer beforehand; and, that such copies will be provided by Data Importer only upon reasonable request by Data Exporter.
7.5 Audits and Certifications. The Parties agree that the audits described in Clause 5(f), Clause 11 and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the following specifications: Upon Data Exporter’s request, and subject to the confidentiality obligations set forth in the Agreement, Data Importer shall make available to Data Exporter (or Data Exporter’s independent, third-party auditor that is not a competitor of Clarabridge) information regarding the Clarabridge Group’s compliance with the obligations set forth in this DPA in the form of the third- party certifications and audits set forth in the Security, Privacy and Architecture Documentation to the extent Clarabridge makes them generally available to its customers. Customer may contact Data Importer in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data in accordance with the Audit provisions of the Agreement. Customer shall reimburse Data Importer for any time expended for any such on-site audit at the Clarabridge Group’s then-current professional services rates, which shall be made available to Data Exporter upon request. Before the commencement of any such on-site audit, Data Exporter and Data Importer shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Data Exporter shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Data Importer. Data Exporter shall promptly notify Data Importer with information regarding any non-compliance discovered during the course of an audit.
7.6 Certification of Deletion. The Parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) shall be provided by the Data Importer to the Data Exporter only upon Data Exporter’s request.
7.7 Conflict In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Attachment 1, the Standard Contractual Clauses shall prevail.
8. Glossary of Defined Words and Phrases
“Affiliate“ means in relation to an entity, any person or entity Controlling, Controlled by or under common Control with such entity, with “Control” meaning the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract or otherwise and, in any event and without limitation of the foregoing, any entity owning more than fifty percent (50%) of the voting securities of a second entity shall be deemed to control that second entity. “Controlling” and “Controlled by” shall have corresponding meanings.
“Clarabridge” means Clarabridge, Inc.
“Clarabridge Group” means Clarabridge and its direct and indirect subsidiaries engaged in the Processing of Personal Data.
“Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.
“Data Protection Laws and Regulations” means all laws and regulations of the European Union, the European Economic Area and their member states, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the individual to whom Personal Data relates.
“Personal Data” means any information relating to an identified or identifiable person where such data is submitted to the Services as Customer Data.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“Security and Privacy Documentation” means the Security and Privacy Documentation applicable to the specific Services purchased by Customer, as updated from time to time, and accessible via [http://clarabridge.com/Security] or otherwise made reasonably available by Clarabridge.
“Standard Contractual Clauses” means the agreement executed by and between Customer and Clarabridge, Inc. and attached hereto as Attachment 1 pursuant to the European Commission’s decision of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
“Sub-processor” means any Data Processor engaged by Clarabridge or a member of the Clarabridge Group.
9. Legal Effect
This DPA shall only become legally binding between Customer and Clarabridge when the Cover Page has been countersigned and delivered to Clarabridge by Customer
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection Customer (the data exporter) and Clarabridge (the data importer) each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) ”personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f)‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Mediation and jurisdiction
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
Cooperation with supervisory authorities
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Obligation after the termination of personal data processing services
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is (please specify briefly your activities relevant to the transfer):
Data Exporter is (i) the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and, (ii) all Affiliates (as defined in the Agreement) of Data Exporter established within the European Economic Area (EEA) and Switzerland that have purchased Subscription Services on the basis of one or more Order Form(s).
The data importer is (please specify briefly activities relevant to the transfer):
Clarabridge, Inc. is a provider of enterprise customer experience management solutions through a cloud based software as a service platform or through the on-premise installation of our software solution that processes personal data upon the instructions fo the data exporter in accordance with the terms of the Agreement.
The personal data transferred concern the following categories of data subjects (please specify):
Data exporter may submit Personal Data to the Subscription Services in the amounts and categories as are determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Categories of data
The personal data transferred concern the following categories of data (please specify):
Data exporter may submit Personal Data to the Subscription Services, in the amounts and categories as are determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data: First, Last and Middle Name, Contact Information, Account Information, ID data, personal life data, connection data and localisation data.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
Data exporter may submit special categories of data to the Subscription Services, in the amounts and categories as are determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade- union membership, and the processing of data concerning health or sex life.
The personal data transferred will be subject to the following basic processing activities (please specify):
The objective of Processing of Personal Data by data importer is the performance of the Subscription Services pursuant to the Agreement.
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Subscription Services, as described in the Security and Privacy Documentation applicable to the Subscription Services purchased by data exporter, as updated from time to time, and accessible via http://clarabridge.com/Security or as otherwise provided by data importer.