Data Processing Annex

This Data Processing Annex (“DPA”) sets forth the terms and conditions with regard to the Processing of Personal Data by Clarabridge (i.e. Processor) on behalf of Customer (i.e. Controller) that are subject to the EU Data Protection Directive 95/46/EC until 25 May 2018 and the General Data Protection Regulation (EU) 2016/679 on and from 25 May 2018 (“Data Protection Laws”) and forms part of the Subscription Services Agreement (the “Master Agreement”). Such personal data shall hereinafter be referred to as “Personal Data”. All capitalized terms not defined herein shall have the meaning set forth in the Master Agreement or, if not defined therein, the meaning set forth in the Data Protection Laws.


DATA PROCESSING TERMS

In the course of providing the Services to Customer pursuant to the Master Agreement, Clarabridge may Process Personal Data on behalf of Customer. The parties agree 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 Controller, Clarabridge is a Processor and that Clarabridge or members of the Clarabridge Group will only engage Sub-processors in accordance with the requirements set forth in section 4 “Sub-processors” below.

1.2 Clarabridge’s Processing of Personal Data. Clarabridge shall not process, transfer, modify, amend or alter the Personal Data or disclose or permit the disclosure of the Personal Data to any third party other than: (i)  to process Personal Data as necessary to provide the services under the Master Agreement and/or otherwise in accordance with the documented instructions of Customer; or (ii) as required to comply with a US,  EU or Member State law to which Clarabridge is subject, in which case Clarabridge shall (to the extent permitted by law) inform the Customer of that legal requirement before processing that Personal Data. Customer instructs Clarabridge to Process Personal Data for the following purposes: (i) Processing in accordance with the Master 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 Master Agreement.

1.3 Deletion of Personal Data. Clarabridge shall delete or return the Personal Data at the end of the provision of the services under the Master Agreement, to the extent reasonably possible and unless applicable law requires the retention of such Personal Data by Clarabridge.

1.4 Customer’s Instructions Must Be Lawful.  The Customer warrants that all Personal Data processed by Clarabridge has been and shall be collected and processed by the Customer in accordance with Data Protection Laws including without limitation: (a) ensuring that all notifications to and approvals from regulators which are required by Data Protection Laws are made and maintained by the Customer; and (b) ensuring that all Personal Data is collected and processed fairly and lawfully, is accurate and up to date and that a fair notice is provided to Data Subjects which describes the Processing to be undertaken by Clarabridge pursuant to the services provided under the Master 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, Clarabridge will 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, notify Customer as soon as reasonably practicable if it receives any request or communication relating to the Customer’s obligations under the Data Protection Laws in relation to the 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 co-operate with the Customer and take such reasonable commercial steps as are directed by the Customer to enable the Customer to comply with any exercise of rights by a Data Subject or comply with any assessment, enquiry, notice or investigation under the Data Protection Laws, provided in each case that the Customer shall reimburse Clarabridge in full for all costs (including for internal resources and any third party costs) reasonably incurred by Clarabridge performing its obligations under this section. To the extent legally permitted, Customer shall be responsible for the service hours incurred and any third-party costs) reasonably incurred by Clarabridge performing its obligations under this section 2.2.

3. PERSONNEL

 

3.1 Confidentiality. Clarabridge shall ensure that its personnel engaged in the Processing of or have access to 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 or are subject to professional or statutory obligations of confidentiality. Clarabridge shall ensure that such confidentiality obligations survive the termination of the personnel engagement.

3.2 Limitation of Access. Clarabridge shall use commercially reasonable efforts to ensure that Clarabridge’s access to Personal Data is limited to those personnel who require such access to perform the Master Agreement and/or any Order Forms.

4. SUB-PROCESSORS

 

4.1 Appointment of Sub-processors. Customer hereby authorizes Clarabridge to subcontract the processing of the Personal Data to its Affiliates and the Sub-processors, Softlayer Technologies, Inc. Unix Solutions BVBA, Amazon Web Services, Inc. and Google LLC as its data center providers, and InfoCepts, LLC as its after hours and overflow customer support provider, who in each case are subject to terms between Clarabridge and the Sub-processor which are no less protective than those set out in this DPA. Clarabridge will inform the Customer of the details of such Sub-processors upon written request from the Customer. Clarabridge will inform Customer in advance of any intended changes concerning the addition or replacement of Sub-processors and thereby give Customer the opportunity to object to such changes. If Customer does not object in writing within ten (10) days of receipt of the notice, Customer is deemed to have accepted the new Sub-processor. If Customer does object in writing within ten (10) days of receipt of the notice, Clarabridge and Customer will discuss possible resolutions.

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.

5. SECURITY

 

5.1 Controls for the Protection of Personal Data. Clarabridge shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing of the Personal Data as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.

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.  Additionally, on reasonable request and at Customer’s expense, Clarabridge shall co-operate in the conduct of any audit or inspection, reasonably necessary to demonstrate Clarabridge’s compliance with the obligations laid down in this DPA, provided always that this requirement shall not oblige Clarabridge to provide or permit access to information concerning i) Clarabridge internal pricing information; (ii) information relating to Clarabridge’s other customers; (iii) any of Clarabridge non-public external reports; or (iv) any internal reports prepared by Clarabridge’s internal audit function. Customer will give Clarabridge reasonable notice of any audit or inspection to be conducted and shall avoid causing any damage, injury or disruption to Clarabridge’s equipment, personnel and business in the course of such an audit or inspection. Further a maximum of one audit or review may be activated for this or any other purpose under the Master Agreement and this DPA in any twelve (12) month period, excluding a follow-up audit that may be necessary to verify completion of any required mitigation or remediation efforts following a data breach.

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, upon becoming aware of a data breach involving the Personal Data: (a) notify the Customer without undue delay; and (b) co-operate with the Customer and take such reasonable commercial steps as are directed by the Customer to assist in the investigation, mitigation and remediation of that data breach, provided in each case that unless the data breach is a result of Clarabridge’s violation of the requirements of this DPA, the Customer shall reimburse Clarabridge in full for all costs (including for internal resources and any third party costs) reasonably incurred by Clarabridge in performing the obligations under this section 6.

7. ADDITIONAL TERMS FOR EU PERSONAL DATA

 

7.1 Application of Standard Contractual Clauses. In providing the Subscription Services, Clarabridge will process Personal Data outside of the European Economic Area, including in the United States. The Standard Contractual Clauses in Attachment 1 (the “Standard Contractual Clauses”) and the additional terms in this Section 7 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 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 Master 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”.

7.1.3 The processing of Personal Data by Clarabridge in the course of providing the Subscription Services shall take place in one or more of the following locations:

 

Data Centers (where Personal Data is processed and stored)

Country

Company

Location

United States

SoftLayer Technologies, Inc.

1950 N. Stemmons Freeway
Dallas, Texas 75207      

United States

SoftLayer Technologies, Inc.

4849 Alpha Road
Dallas, Texas 75244

United States

SoftLayer Technologies, Inc.

3355 South 120th Place
Seattle, Washington 98168

United States

SoftLayer Technologies, Inc.

4030 Lafayette Center Drive
Chantilly, Virginia 20151 

European Union

SoftLayer Technologies, Inc.

Paul van Vlissingenstraat 16
1096 BK Amsterdam
The Netherlands

European Union

SoftLayer Technologies, Inc.

Fountain Crt, Cox Ln
London, KT9 1SJ
United Kingdom

Belgium

Unix Solutions BVBA

Hoge Wei 37A, B-1930 Zaventem

United States

Amazon Web Services
Region: US Standard

Amazon AWS’s data center location by region information is available at their website.

European Union

Amazon Web Services
Region: EU Ireland

Amazon AWS’s data center location by region information is available at their website.

United States

Google LLC
Google Compute Engine

Region: us-central1-a

Google Compute Engine’s data center location information is available from their website.

European Union

Google LLC
Google Compute Engine

Region: europe-west1-b

Google Compute Engine’s data center location information is available from their website.

 

Customer Service Centers and Operations Centers (where processing commands may originate and where Personal Data may be accessed and displayed on representative’s computer screens for customer service purposes)

Country

Company

Address

United States

Clarabridge, Inc.

11400 Commerce Park Dr., Suite 500,

Reston, VA 20191

United States

Market Metrix LLC,

a Clarabridge Co.

900 Larkspur Landing Circle, Suite 160
Larkspur, CA 94939

United Kingdom

Clarabridge UK Ltd.

95 Aldwych, 6th Floor
London WC2B 4JF
United Kingdom

Belgium

Engagor NV

a Clarabridge Co.

Grauwpoort 1
9000 Ghent, Belgium

India

InfoCepts, LLC

11/1 I.T. Park, Parsodi,
Nagpur, India 440022

 

7.2 Objective. The objective of Processing of Personal Data by Clarabridge is the performance of the Subscription Services pursuant to the Master Agreement and any Order Forms.

7.3 Instructions. This DPA and the Master 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 Master 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 in accordance with Section 4 above.

7.4.1 Current Sub-processors and Notice of New Sub-processors.  Along with Clarabridge Affiliates, Softlayer Technologies, Inc., InfoCepts, LLC, Unix Solutions BVBA, Amazon Web Services, Inc. and Google 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 ten (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 efforts 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 the objection is not unreasonable and 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 Master 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 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 Master 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 Master 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) of the Standard Contractual Clauses 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

 

Affiliatemeans in relation to an entity, any person or entity Controlling, Controlled by or under common Control with such entity, with “Controlmeaning 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. “Controllingand “Controlled byshall have corresponding meanings.

“Clarabridge” means Clarabridge, Inc.

“Clarabridge Group” means Clarabridge and each of its direct and indirect subsidiaries engaged in the Processing of Personal Data.

“Controller” means Customer as the entity which determines the purposes and means of the Processing of Personal Data.

“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.

“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.

“Processor” means the Clarabridge Group and any subprocessors used by them in accordance with this DPA, collectively as the entities which Processes Personal Data on behalf of the Controller.

“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 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


Attachment 1

Standard Contractual Clauses (processors)

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.

Clause 1

Definitions

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.

Clause 2

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.

Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

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).

Clause 5

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.

Clause 6

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
    The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

 

  1. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(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.

  1. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

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.

Clause 11

Subprocessing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
  2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses

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.

Data exporter

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).

Data importer

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.

Data subjects

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.

Processing operations

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.


Appendix 2 to the Standard Contractual Clauses

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.

Appendix 2 to the Standard Contractual Clauses

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.

[End of Appendix 2 to the Standard Contractual Clauses]