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General Terms and Conditions for Qualtrics Cloud Services (Direct) enGlobal.v.5-2020
EXHIBIT B - ADDITIONAL TERMS AND CONDITIONS FOR QUALTRICS CLOUD SERVICES (“GTC”)
Between Qualtrics, LLC
(an SAP America Inc. company)
333 W. River Park Drive
Provo, Utah 84604
(“Qualtrics”)
And City of Renton, a Washington municipal corporation
(“Customer”)
1.DEFINITIONS
Capitalized terms used in this document are defined in the Glossary.
2.USAGE RIGHTS AND RESTRICTIONS
2.1Grant of Rights.
Qualtrics grants to Customer a non-exclusive, non-transferable and world-wide right to use the Cloud
Service (including its implementation and configuration), Cloud Materials (as applicable) and
Documentation solely for Customer’s and its Affiliates’ internal business operations. Permitted uses and
restrictions of the Cloud Service also apply to Cloud Materials and Documentation.
2.2Authorized Users.
Customer may permit Authorized Users to use the Cloud Service. Usage is limited to the Usage Metrics
and volumes stated in the Order Form. Access credentials for the Cloud Service may not be used by
more than one individual, but may be transferred from one individual to another if the original user is
no longer permitted to use the Cloud Service. Customer is responsible for breaches of the Agreement
caused by Authorized Users.
2.3Acceptable Use Policy.
With respect to the Cloud Service, Customer will not:
(a)disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
(b)transmit any content or data that is unlawful or infringes any intellectual property rights, or
(c)circumvent or endanger its operation or security.
2.4Verification of Use.
Customer will monitor its own use of the Cloud Service and report any use in excess of the Usage
Metrics and volume. Qualtrics may monitor use to verify compliance with Usage Metrics, volume and
the Agreement.
2.5Suspension of Cloud Service.
Qualtrics may suspend or limit use of the Cloud Service if continued use may result in material harm
to the Cloud Service or its users. Qualtrics will promptly notify Customer of the suspension or limitation.
Qualtrics will limit a suspension or limitation in time and scope as reasonably possible under the
circumstances.
2.6Third Party Web Services.
The Cloud Service may include integrations with web services made available by third parties (other
than Qualtrics’ Affiliates) that are accessed through the Cloud Service and subject to terms and
conditions with those third parties. These third party web services are not part of the Cloud Service
and the Agreement does not apply to them.
2.7Mobile Access to Cloud Service.
If applicable, Authorized Users may access certain Cloud Services through mobile applications obtained
from third-party websites such as Android or Apple app store. The use of mobile applications may be
governed by the terms and conditions presented upon download/access to the mobile application and
not by the terms of the Agreement.
3.QUALTRICS RESPONSIBILITIES
3.1Provisioning.
Qualtrics provides access to the Cloud Service as described in the Agreement.
3.2Support.
Qualtrics provides support for the Cloud Service as referenced in the Order Form.
3.3Security.
Qualtrics will implement and maintain appropriate technical and organizational measures to protect the
personal data processed by Qualtrics as part of the Cloud Service as described in the Data Processing
Agreement attached hereto as Exhibit C (“DPA”) for Cloud Services incorporated into the Order Form
in compliance with applicable data protection law.
3.4Modifications.
(a)The Cloud Service and Qualtrics Policies may be modified by Qualtrics. Qualtrics will inform
Customer of modifications by email, the support portal, release notes, Documentation or the
Cloud Service. The information will be delivered by email if the modification is not solely an
enhancement. Modifications may include optional new features for the Cloud Service, which
Customer may use subject to the then-current Supplement and Documentation.
(b)If Customer establishes that a modification is not solely an enhancement and materially reduces
the Cloud Service, Customer may terminate its subscriptions to the affected Cloud Service by
providing written notice to Qualtrics within thirty days after receipt of Qualtrics’ informational
notice.
3.5Analyses.
Qualtrics or Qualtrics’ Affiliates may create analyses utilizing, in part, Customer Data and information derived
from Customer’s use of the Cloud Service and Consulting Services, as set forth below (“Analyses”). Analyses
will anonymize and aggregate information and will be treated as Cloud Materials.
Unless otherwise agreed, personal data contained in Customer Data is only used to provide the Cloud Service
and Consulting Services. Analyses may be used for the following purposes:
a)product improvement (in particular, product features and functionality, workflows and user
interfaces) and development of new Qualtrics products and services,
b)improving resource allocation and support,
c)internal demand planning,
d)training and developing machine learning algorithms,
e)improving product performance,
f)verification of security and data integrity
g)identification of industry trends and developments, creation of indices and anonymous
benchmarking
4.CUSTOMER AND PERSONAL DATA
4.1Customer Data.
Customer is responsible for the Customer Data and entering it into the Cloud Service. Customer grants
to Qualtrics (including Qualtrics’ Affiliates and subcontractors) a nonexclusive right to process Customer
Data solely to provide and support the Cloud Service.
4.2Personal Data.
Customer will collect and maintain all personal data contained in the Customer Data in compliance with
applicable data privacy and protection laws.
4.3Security.
Customer will maintain reasonable security standards for its Authorized Users’ use of the Cloud Service.
Customer will not conduct or authorize penetration tests of the Cloud Service without advance approval
from Qualtrics.
4.4Access to Customer Data.
(a)During the Subscription Term, Customer can access its Customer Data at any time. Customer may
export and retrieve its Customer Data in a standard format. Export and retrieval may be subject
to technical limitations, in which case Qualtrics and Customer will find a reasonable method to
allow Customer access to Customer Data.
(b)Before the Subscription Term expires, if available, Customer may use Qualtrics’ self-service
export tools (as available) to perform a final export of Customer Data from the Cloud Service.
Alternatively, Customer may request data export through support ticket.
(c)At the end of the Agreement and upon Customer’s successful export of data, Qualtrics will delete
the Customer Data remaining on servers hosting the Cloud Service unless applicable law requires
retention. Retained data is subject to the confidentiality provisions of the Agreement.
(d)In the event of third party legal proceedings relating to the Customer Data, Qualtrics will
cooperate with Customer and comply with applicable law (both at Customer’s expense) with
respect to handling of the Customer Data.
5.FEES AND TAXES
5.1Fees and Payment.
Customer will pay fees as stated in AGREEMENT FOR QUALTRICS – Section 4 (Compensation).
6.TERM AND TERMINATION
6.1Term.
The Subscription Term is as stated in the Order Form.
6.2Termination.
A party may terminate the Agreement:
(a)upon thirty days written notice of the other party’s material breach unless the breach is
cured during that thirty day period,
(b)as permitted under Sections 3.4(b), 7.3(b), 7.4(c), or 8.1(c) (with termination effective thirty
days after receipt of notice in each of these cases), or
(c)immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment
for the benefit of creditors, or otherwise materially breaches Sections 11 or 12.6.
6.3Refund and Payments.
For termination by Customer or an 8.1(c) termination, Customer will be entitled to:
(a)a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated
subscription calculated as of the effective date of termination, and
(b)a release from the obligation to pay fees due for periods after the effective date of termination.
6.4Effect of Expiration or Termination.
Upon the effective date of expiration or termination of the Agreement:
(a)Customer’s right to use the Cloud Service and all Qualtrics Confidential Information will end,
(b)Confidential Information of the disclosing party will be returned or destroyed as required by the
Agreement, and
(c)termination or expiration of the Agreement does not affect other agreements between the
parties.
6.5Survival.
Sections 1, AGREEMENT FOR QUALTRICS – SECTION 4 (Compensation), 6.3, 6.4, 6.5, 8, 9, 10, 11, and
12 will survive the expiration or termination of the Agreement.
7.WARRANTIES
7.1Compliance with Law.
Each party warrants its current and continuing compliance with all laws and regulations applicable to it
in connection with:
(a)in the case of Qualtrics, the operation of Qualtrics’ business as it relates to the Cloud Service,
and
(b)in the case of Customer, the Customer Data and Customer’s use of the Cloud Service.
7.2Good Industry Practices.
Qualtrics warrants that it will provide the Cloud Service:
(a)in substantial conformance with the Documentation; and
(b)with the degree of skill and care reasonably expected from a skilled and experienced global
supplier of services substantially similar to the nature and complexity of the Cloud Service.
7.3System Availability.
(a)Qualtrics warrants to maintain an average monthly system availability for the production system
of the Cloud Service as defined in the applicable service level agreement or Supplement (“SLA”).
(b)Customer’s sole and exclusive remedy for Qualtrics’ breach of the SLA is the issuance of a credit
in the amount described in the SLA. Customer will follow Qualtrics’ posted credit claim procedure.
When the validity of the service credit is confirmed by Qualtrics in writing (email permitted),
Customer may apply the credit to a future invoice for the Cloud Service or request a refund for
the amount of the credit if no future invoice is due.
(c)In the event Qualtrics fails to meet the SLA (i) for four consecutive months, or (ii) for five or more
months during any twelve months period, or (iii) at a system availability level of at least 95%
for one calendar month, Customer may terminate its subscriptions for the affected Cloud Service
by providing Qualtrics with written notice within thirty days after the failure.
7.4Warranty Exclusions.
The warranties in Sections 7.2 and 7.3 will not apply if:
(a)the Cloud Service is not used in accordance with the Agreement or Documentation,
(b)any non-conformity is caused by Customer, or by any product or service not provided by
Qualtrics, or
8.[Intentionally Omitted.]
9.LIMITATION OF LIABILITY
9.1Unlimited Liability.
Neither party will exclude or limit its liability for damages resulting from:
(a)the parties’ obligations under Section 8.1(a) and 8.2,
(b)unauthorized use or disclosure of Confidential Information,
(c)either party’s breach of its data protection and security obligations that result in an unauthorized
use or disclosure of personal data,
(d)death or bodily injury arising from either party’s gross negligence or willful misconduct, or
(e)any failure by Customer to pay any fees due under the Agreement.
9.2Liability Cap.
Subject to Sections 9.1 and 9.3 and to the extent not prohibited by applicable law, the maximum
aggregate liability of either party (or its respective Affiliates or Qualtrics’ subcontractors) to the other
or any other person or entity for all events (or series of connected events) arising in any twelve month
period will not exceed the annual subscription fees paid for the applicable Cloud Service directly causing
the damage for that twelve month period. Any “twelve month period” commences on the Subscription
Term start date or any of its yearly anniversaries.
9.3Exclusion of Damages.
Subject to Section 9.1:
(a)neither party (nor its respective Affiliates or Qualtrics’ subcontractors) will be liable to the other
party for any special, incidental, consequential, or indirect damages, loss of good will or business
profits, work stoppage or for exemplary or punitive damages, and
(b)To the extent not prohibited by applicable law, Qualtrics will not be liable for any damages
caused by any Cloud Service provided for no fee.
9.4Risk Allocation.
The Agreement allocates the risks between Qualtrics and Customer. The fees for the Cloud Service and
Consulting Services reflect this allocation of risk and limitations of liability.
10.INTELLECTUAL PROPERTY RIGHTS
10.1QUALTRICS Ownership.
Qualtrics, Qualtrics’ Affiliates or licensors own all intellectual property rights in and related to the Cloud
Service, Cloud Materials, Documentation, Consulting Services, design contributions, related knowledge
or processes, and any derivative works of them. All rights not expressly granted to Customer are
reserved to Qualtrics and its licensors.
10.2Customer Ownership.
Customer retains all rights in and related to the Customer Data. Qualtrics may use Customer-provided
trademarks solely to provide and support the Cloud Service.
10.3Non-Assertion of Rights.
Customer covenants, on behalf of itself and its successors and assigns, not to assert against Qualtrics
and its Affiliates or licensors, any rights, or any claims of any rights, in any Cloud Service, Cloud
Materials, Documentation, or Consulting Services.
11.CONFIDENTIALITY
11.1Use of Confidential Information.
(a)The receiving party will protect all Confidential Information of the disclosing party as strictly
confidential to the same extent it protects its own Confidential Information, and not less than a
reasonable standard of care. Receiving party will not disclose any Confidential Information of the
disclosing party to any person other than its personnel, representatives or Authorized Users
whose access is necessary to enable it to exercise its rights or perform its obligations under the
Agreement and who are under obligations of confidentiality substantially similar to those in
Section 11. Customer will not disclose the Agreement or the pricing to any third party.
(b)Confidential Information of either party disclosed prior to execution of the Agreement will be
subject to Section 11.
(c)In the event of legal proceedings relating to the Confidential Information, the receiving party will
cooperate with the disclosing party and comply with applicable law (all at disclosing party’s
expense) with respect to handling of the Confidential Information.
11.2Exceptions.
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential
Information that:
(a)is independently developed by the receiving party without reference to the disclosing party’s
Confidential Information,
(b)is generally available to the public without breach of the Agreement by the receiving party,
(c)at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or
(d)the disclosing party agrees in writing is free of confidentiality restrictions.
11.3Publicity.
Neither party will use the name of the other party in publicity activities without the prior written consent
of the other, except that Customer agrees that Qualtrics may use Customer's name in customer listings
or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of Qualtrics'
marketing efforts (including reference calls and stories, press testimonials, site visits, SAPPHIRE
participation). Customer agrees that Qualtrics may share information on Customer with its Affiliates for
marketing and other business purposes and that it has secured appropriate authorizations to share
Customer employee contact information with Qualtrics.
12.MISCELLANEOUS
12.1[Intentionally Omitted.]
12.2[Intentionally Omitted.]
12.3Electronic Signature.
Electronic signatures that comply with applicable law are deemed original signatures.
12.4Regulatory Matters.
Qualtrics Confidential Information is subject to export control laws of various countries, including the
laws of the United States and Germany. Customer will not submit Qualtrics Confidential Information to
any government agency for licensing consideration or other regulatory approval, and will not export
Qualtrics Confidential Information to countries, persons or entities if prohibited by export laws.
12.5[Intentionally Omitted.]
12.6[Intentionally Omitted.]
12.7Subcontracting.
Qualtrics may subcontract parts of the Cloud Service or Consulting Services to third parties. Qualtrics
is responsible for breaches of the Agreement caused by its subcontractors.
12.8[Intentionally Omitted.]
12.9Force Majeure.
Any delay in performance (other than for the payment of amounts due) caused by conditions beyond
the reasonable control of the performing party is not a breach of the Agreement. The time for
performance will be extended for a period equal to the duration of the conditions preventing
performance.
12.10[Intentionally Omitted.]
12.11[Intentionally Omitted.]
12.12Data Processing Agreement.
Where Customer is processing personal data using the Services, the DPA shall govern the processing
of such personal data.
Glossary
1.1“Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than
fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate
as long as that interest is maintained.
1.2“Agreement” means an Order Form and documents incorporated into an Order Form.
1.3“Authorized User” means any individual to whom Customer grants access authorization to use the
Cloud Service that is an employee, agent, contractor or representative of
(a)Customer,
(b)Customer's Affiliates, and/or
(c)Customer’s and Customer’s Affiliates’ Business Partners.
1.4“Business Partner” means a legal entity that requires use of a Cloud Service in connection with
Customer’s and its Affiliates’ internal business operations. These may include customers, distributors,
service providers and/or suppliers of Customer.
1.5“Cloud Service” means any distinct, subscription-based, hosted, supported and operated on- demand
solution provided by Qualtrics under an Order Form.
1.6“Cloud Materials” mean any materials provided or developed by Qualtrics (independently or with
Customer’s cooperation) in the course of performance under the Agreement, including in the delivery
of any support or Consulting Services to Customer. Cloud Materials do not include the Customer Data,
Customer Confidential Information or the Cloud Service.
1.7“Confidential Information" means
(a)with respect to Customer: (i) the Customer Data, (ii) Customer marketing and business
requirements, (iii) Customer implementation plans, and/or (iv) Customer financial information,
and
(b)with respect to Qualtrics: (i) the Cloud Service, Documentation, Cloud Materials and analyses
under Section 3.5, and (ii) information regarding Qualtrics research and development, product
offerings, pricing and availability.
(c)Confidential Information of either Qualtrics or Customer also includes information which the
disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its
representatives designates as confidential at the time of disclosure, or (ii) should reasonably be
understood to be confidential given the nature of the information and the circumstances
surrounding its disclosure.
(d).
1.8“Consulting Services” means professional services, such as implementation, configuration, custom
development and training, performed by Qualtrics’ employees or subcontractors as described in any
Order Form and which are governed by the Supplement for Consulting Services or similar agreement.
1.9“Customer Data” means any content, materials, data and information that Authorized Users enter
into the production system of a Cloud Service or that Customer derives from its use of and stores in
the Cloud Service (e.g. Customer-specific reports). Customer Data and its derivatives will not include
Qualtrics’ Confidential Information.
1.10“Documentation” means Qualtrics' then-current technical and functional documentation as well as
any roles and responsibilities descriptions, if applicable, for the Cloud Service which is made available
to Customer with the Cloud Service.
1.11“Order Form” means the ordering document for a Cloud Service that references the GTC.
1.12 “Qualtrics Policies” means the operational guidelines and policies applied by Qualtrics to provide
and support the Cloud Service as incorporated in an Order Form.
1.13“Subscription Term” means the term of a Cloud Service subscription identified in the applicable Order
Form, including all renewals.
1.14“Supplement” means as applicable, the supplemental terms and conditions that apply to the Cloud
Service and that are incorporated in an Order Form.
1.15“Usage Metric” means the standard of measurement for determining the permitted use and
calculating the fees due for a Cloud Service as set forth in an Order Form.
Exhibit C
Data Processing Agreement
PERSONAL DATA PROCESSING AGREEMENT FOR QUALTRICS CLOUD SERVICES
This Data Processing Addendum (“DPA”) is entered into
BETWEEN
(1) Customer; and
(2) Qualtrics.
1.BACKGROUND
1.1Purpose and Application. This document is incorporated into the Agreement and forms part of a
written (including in electronic form) contract between Qualtrics and Customer. This DPA applies to
Personal Data processed by Qualtrics and its Subprocessors in connection with its provision of the Cloud
Service. This DPA does not apply to non-production environments of the Cloud Service if such
environments are made available by Qualtrics, and Customer shall not store Personal Data in such
environments.
1.2Structure. Appendices 1 and 2 are incorporated into and form part of this DPA. They set out the agreed
subject-matter, the nature and purpose of the processing, the type of Personal Data, categories of data
subjects and the applicable technical and organizational measures.
1.3GDPR. Qualtrics and Customer agree that it is each party’s responsibility to review and adopt
requirements imposed on Controllers and Processors by the General Data Protection Regulation
2016/679 (“GDPR”), in particular with regards to Articles 28 and 32 to 36 of the GDPR, if and to the
extent applicable to Personal Data of Customer/Controllers that is processed under the DPA. For
illustration purposes, Appendix 3 lists the relevant GDPR requirements and the corresponding sections
in this DPA.
1.4Governance. Qualtrics acts as a Processor and Customer and those entities that it permits to use the
Cloud Service act as Controllers under the DPA. Customer acts as a single point of contact and is solely
responsible for obtaining any relevant authorizations, consents and permissions for the processing of
Personal Data in accordance with this DPA, including, where applicable approval by Controllers to use
Qualtrics as a Processor. Where authorizations, consent, instructions or permissions are provided by
Customer these are provided not only on behalf of the Customer but also on behalf of any other
Controller using the Cloud Service. Where Qualtrics informs or gives notice to Customer, such
information or notice is deemed received by those Controllers permitted by Customer to use the Cloud
Service and it is Customer’s responsibility to forward such information and notices to the relevant
Controllers.
2.SECURITY OF PROCESSING
2.1Appropriate Technical and Organizational Measures. Qualtrics has implemented and will apply the
technical and organizational measures set forth in Appendix 2. Customer has reviewed such measures
and agrees that as to the Cloud Service selected by Customer in the Order Form the measures are
appropriate taking into account the state of the art, the costs of implementation, nature, scope, context
and purposes of the processing of Personal Data.
2.2Changes. Qualtrics applies the technical and organizational measures set forth in Appendix 2 to
Qualtrics’ entire customer base hosted out of the same Data Center and receiving the same Cloud
Service. Qualtrics may change the measures set out in Appendix 2 at any time without notice so long
as it maintains a comparable or better level of security. Individual measures may be replaced by new
measures that serve the same purpose without diminishing the security level protecting Personal Data.
3.QUALTRICS OBLIGATIONS
3.1Instructions from Customer. Qualtrics will process Personal Data only in accordance with documented
instructions from Customer. The Agreement (including this DPA) constitutes such documented initial
instructions and each use of the Cloud Service then constitutes further instructions. Qualtrics will use
reasonable efforts to follow any other Customer instructions, as long as they are required by Data
Protection Law, technically feasible and do not require changes to the Cloud Service. If any of the before-
mentioned exceptions apply, or Qualtrics otherwise cannot comply with an instruction or is of the opinion
that an instruction infringes Data Protection Law, Qualtrics will immediately notify Customer (email
permitted).
3.2Processing on Legal Requirement. Qualtrics may also process Personal Data where required to do
so by applicable law. In such a case, Qualtrics shall inform Customer of that legal requirement before
processing unless that law prohibits such information on important grounds of public interest.
3.3Personnel. To process Personal Data, Qualtrics and its Subprocessors shall only grant access to
authorized personnel who have committed themselves to confidentiality. Qualtrics and its Subprocessors
will regularly train personnel having access to Personal Data in applicable data security and data privacy
measures.
3.4Cooperation. At Customer’s request, Qualtrics will reasonably cooperate with Customer and Controllers
in dealing with requests from Data Subjects or regulatory authorities regarding Qualtrics’ processing of
Personal Data or any Personal Data Breach. Qualtrics shall notify the Customer as soon as reasonably
practical about any request it has received from a Data Subject in relation to the Personal Data
processing, without itself responding to such request without Customer’s further instructions, if
applicable. Qualtrics shall provide functionality that supports Customer's ability to correct or remove
Personal Data from the Cloud Service, or restrict its processing in line with Data Protection Law. Where
such functionality is not provided, Qualtrics will correct or remove any Personal Data, or restrict its
processing, in accordance with the Customer’s instruction and Data Protection Law.
3.5Personal Data Breach Notification. Qualtrics will notify Customer without undue delay after becoming
aware of any Personal Data Breach and provide reasonable information in its possession to assist
Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data
Protection Law. Qualtrics may provide such information in phases as it becomes available. Such
notification shall not be interpreted or construed as an admission of fault or liability by Qualtrics.
3.6Data Protection Impact Assessment. If, pursuant to Data Protection Law, Customer (or its
Controllers) are required to perform a data protection impact assessment or prior consultation with a
regulator, at Customer’s request, Qualtrics will provide such documents as are generally available for
the Cloud Service (for example, this DPA, the Agreement, audit reports or certifications). Any additional
assistance shall be mutually agreed between the Parties.
4.DATA EXPORT AND DELETION
4.1Export and Retrieval by Customer. During the Subscription Term and subject to the Agreement,
Customer can access its Personal Data at any time. Customer may export and retrieve its Personal Data
in a standard format. Export and retrieval may be subject to technical limitations, in which case Qualtrics
and Customer will find a reasonable method to allow Customer access to Personal Data.
4.2Deletion. Before the Subscription Term expires, Customer is required to use Qualtrics' self-service
export tools (as available) to perform a final export of Personal Data from the Cloud Service (which shall
constitute a "return" of Personal Data). At the end of the Subscription Term, Customer hereby instructs
Qualtrics to delete the Personal Data remaining on servers hosting the Cloud Service within a reasonable
time period in line with Data Protection Law (not to exceed six months) unless applicable law requires
retention.
5.CERTIFICATIONS AND AUDITS
5.1Customer Audit. Customer or its independent third party auditor reasonably acceptable to Qualtrics
(which shall not include any third party auditors who are either a competitor of Qualtrics or not suitably
qualified or independent) may audit Qualtrics’ control environment and security practices relevant to
Personal Data processed by Qualtrics only if:
(a)Qualtrics has not provided sufficient evidence of its compliance with the technical and
organizational measures that protect the production systems of the Cloud Service through
providing either: (i) a certification as to compliance with ISO 27001 or other standards (scope
as defined in the certificate); or (ii) a valid ISAE3402 and/or ISAE3000 or other SOC1-3
attestation report. Upon Customer’s request audit reports or ISO certifications are available
through the third party auditor or Qualtrics;
(b)A Personal Data Breach has occurred;
(c)An audit is formally requested by Customer’s data protection authority; or
(d)Mandatory Data Protection Law provides Customer with a direct audit right and provided that
Customer shall only audit once in any twelve month period unless mandatory Data Protection
Law requires more frequent audits.
5.2Other Controller Audit. Any other Controller may audit Qualtrics’ control environment and security
practices relevant to Personal Data processed by Qualtrics in line with Section 5.1 only if any of the
cases set out in Section 5.1 applies to such other Controller. Such audit must be undertaken through
and by Customer as set out in Section 5.1 unless the audit must be undertaken by the other Controller
itself under Data Protection Law. If several Controllers whose Personal Data is processed by Qualtrics
on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine
the audits and to avoid multiple audits.
5.3Scope of Audit. Customer shall provide at least sixty days advance notice of any audit unless
mandatory Data Protection Law or a competent data protection authority requires shorter notice. The
frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and
in good faith. Customer audits shall be limited in time to a maximum of three business days. Beyond
such restrictions, the parties will use current certifications or other audit reports to avoid or minimize
repetitive audits. Customer shall provide the results of any audit to Qualtrics.
5.4Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach
by Qualtrics of this DPA, then Qualtrics shall bear its own expenses of an audit. If an audit determines
that Qualtrics has breached its obligations under the DPA, Qualtrics will promptly remedy the breach at
its own cost.
6.SUBPROCESSORS
6.1Permitted Use. Qualtrics is granted a general authorization to subcontract the processing of Personal
Data to Subprocessors, provided that:
(a)Qualtrics shall engage Subprocessors under a written (including in electronic form) contract
consistent with the terms of this DPA in relation to the Subprocessor’s processing of Personal
Data. Qualtrics shall be liable for any breaches by the Subprocessor in accordance with the
terms of this Agreement;
(b)Qualtrics will evaluate the security, privacy and confidentiality practices of a Subprocessor prior
to selection to establish that it is capable of providing the level of protection of Personal Data
required by this DPA; and
(c)Qualtrics’ list of Subprocessors in place on the effective date of the Agreement is published by
Qualtrics or Qualtrics will make it available to Customer, upon request including the name,
address and role of each Subprocessor Qualtrics uses to provide the Cloud Service.
6.2New Subprocessors. Qualtrics’ use of Subprocessors is at its discretion, provided that:
(a)Qualtrics will inform Customer in advance (by email or by posting within the Cloud Service) of
any intended additions or replacements to the list of Subprocessors including name, address
and role of the new Subprocessor; and
(b)Customer may object to such changes as set out in Section 6.3.
6.3Objections to New Subprocessors.
(a)If Customer has a legitimate reason under Data Protection Law to object to the new
Subprocessors’ processing of Personal Data, Customer may terminate the Agreement (limited
to the Cloud Service for which the new Subprocessor is intended to be used) on written notice
to Qualtrics. Such termination shall take effect at the time determined by the Customer which
shall be no later than thirty days from the date of Qualtrics’ notice to Customer informing
Customer of the new Subprocessor. If Customer does not terminate within this thirty day period,
Customer is deemed to have accepted the new Subprocessor.
(b)Within the thirty day period from the date of Qualtrics’ notice to Customer informing Customer
of the new Subprocessor, Customer may request that the parties come together in good faith
to discuss a resolution to the objection. Such discussions shall not extend the period for
termination and do not affect Qualtrics’ right to use the new Subprocessor(s) after the thirty
day period.
(c)Any termination under this Section 6.3 shall be deemed to be without fault by either party and
shall be subject to the terms of the Agreement.
6.4Emergency Replacement. Qualtrics may replace a Subprocessor without advance notice where the
reason for the change is outside of Qualtrics’ reasonable control and prompt replacement is required for
security or other urgent reasons. In this case, Qualtrics will inform Customer of the replacement
Subprocessor as soon as possible following its appointment. Section 6.3 applies accordingly.
7.INTERNATIONAL PROCESSING
7.1Conditions for International Processing. Qualtrics shall be entitled to process Personal Data,
including by using Subprocessors, in accordance with this DPA outside the country in which the Customer
is located as permitted under Data Protection Law. Qualtrics shall not process Personal Data outside of
the data center region selected by Customer except to the extent necessary to comply with Customer’s
instructions (e.g., support purposes, use of subprocessor services).
7.2Standard Contractual Clauses. Where (i) Personal Data of an EEA or Swiss based Controller is
processed in a country outside the EEA, Switzerland and any country, organization or territory
acknowledged by the European Union as a safe country with an adequate level of data protection under
Art. 45 GDPR, or where (ii) Personal Data of another Controller is processed internationally and such
international processing requires an adequacy means under the laws of the country of the Controller
and the required adequacy means can be met by entering into Standard Contractual Clauses, then:
Qualtrics and Customer enter into the Standard Contractual Clauses;
Customer enters into the Standard Contractual Clauses with each relevant Subprocessor as
follows, either (i) Customer joins the Standard Contractual Clauses entered into by Qualtrics
and the Subprocessor as an independent owner of rights and obligations (“Accession Model”)
or, (ii) the Subprocessor (represented by Qualtrics) enters into the Standard Contractual Clauses
with Customer (“Power of Attorney Model”). The Power of Attorney Model shall apply if and
when Qualtrics has expressly confirmed that a Subprocessor is eligible for it through the
Subprocessor list provided under Section 6.1(c), or a notice to Customer; and/or
Other Controllers whose use of the Cloud Services has been authorized by Customer under the
Agreement may also enter into Standard Contractual Clauses with Qualtrics and/or the relevant
Subprocessors in the same manner as Customer in accordance with Sections 7.2 (a) and (b)
above. In such case, Customer will enter into the Standard Contractual Clauses on behalf of
the other Controllers.
7.3Relation of the Standard Contractual Clauses to the Agreement. Nothing in the Agreement shall
be construed to prevail over any conflicting clause of the Standard Contractual Clauses. For the
avoidance of doubt, where this DPA further specifies audit and subprocessor rules in sections 5 and 6,
such specifications also apply in relation to the Standard Contractual Clauses.
7.4Governing Law of the Standard Contractual Clauses. The Standard Contractual Clauses shall be
governed by the law of the country in which the relevant Controller is incorporated.
8.DOCUMENTATION; RECORDS OF PROCESSING
Each party is responsible for its compliance with its documentation requirements, in particular maintaining
records of processing where required under Data Protection Law. Each party shall reasonably assist the other
party in its documentation requirements, including providing the information the other party needs from it in a
manner reasonably requested by the other party (such as using an electronic system), in order to enable the
other party to comply with any obligations relating to maintaining records of processing.
9.DEFINITIONS
Capitalized terms not defined herein will have the meanings given to them in the Agreement.
9.1“Controller” means the natural or legal person, public authority, agency or other body which, alone or
jointly with others, determines the purposes and means of the processing of Personal Data; for the
purposes of this DPA, where Customer acts as processor for another controller, it shall in relation to
Qualtrics be deemed as additional and independent Controller with the respective controller rights and
obligations under this DPA.
9.2“Data Center” means the location where the production instance of the Cloud Service is hosted for the
Customer in the region agreed in an Order Form.
9.3“Data Protection Law” means the applicable legislation protecting the fundamental rights and
freedoms of persons and their right to privacy with regard to the processing of Personal Data under the
Agreement (and includes, as far as it concerns the relationship between the parties regarding the
processing of Personal Data by Qualtrics on behalf of Customer, the GDPR as a minimum standard,
irrespective of whether the Personal Data is subject to GDPR or not).
9.4“Data Subject” means an identified or identifiable natural person as defined by Data Protection Law.
9.5“EEA” means the European Economic Area, namely the European Union Member States along with
Iceland, Liechtenstein and Norway.
9.6“Personal Data” means any information relating to a Data Subject which is protected under Data
Protection Law. For the purposes of the DPA, it includes only personal data which is (i) entered by
Customer or its Authorized Users into or derived from their use of the Cloud Service, or (ii) supplied to
or accessed by Qualtrics or its Subprocessors in order to provide support under the Agreement. Personal
Data is a sub-set of Customer Data (as defined under the Agreement).
9.7“Personal Data Breach” means a confirmed (1) accidental or unlawful destruction, loss, alteration,
unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident
involving Personal Data, in each case for which a Controller is required under Data Protection Law to
provide notice to competent data protection authorities or Data Subjects.
9.8“Processor” means a natural or legal person, public authority, agency or other body which processes
personal data on behalf of the controller, be it directly as processor of a controller or indirectly as
subprocessor of a processor which processes personal data on behalf of the controller.
9.9“Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the
(Standard Contractual Clauses (processors)) or any subsequent version thereof published by the
European Commission (which will automatically apply). The Standard Contractual Clauses current as of
the effective date of the Agreement are attached hereto as Appendix 4.
9.10“Subprocessor” means Qualtrics affiliates and third parties engaged by Qualtrics in connection with
the Cloud Service and which process Personal Data in accordance with this DPA.
Appendix 1 to the DPA and, if applicable, the Standard Contractual Clauses
Data Exporter
The Data Exporter is the Customer who subscribed to a Cloud Service that allows Authorized Users to enter,
amend, use, delete or otherwise process Personal Data. Where the Customer allows other Controllers to also
use the Cloud Service, these other Controllers are also Data Exporters.
Data Importer
Qualtrics and its Subprocessors provide the Cloud Service that includes the following support:
Qualtrics and its Affiliates support the Cloud Service data centers remotely from Qualtrics’ locations specified
in Qualtrics’ Security White Paper (which is available upon request). Support includes:
Monitoring the Cloud Service
Backup & restoration of Customer Data stored in the Cloud Service
Release and development of fixes and upgrades to the Cloud Service
Monitoring, troubleshooting and administering the underlying Cloud Service infrastructure and database
Security monitoring, network-based intrusion detection support, penetration testing
Qualtrics and its Affiliates provide support when a Customer requests support because the Cloud Service is
not available or not working as expected for some or all Authorized Users. Qualtrics answers phones and
performs basic troubleshooting, and handles support tickets in a tracking system that is separate from the
production instance of the Cloud Service.
Data Subjects
The Data Exporter solely determines the categories of Data Subjects which may include: employees,
contractors, business partners or other individuals having Personal Data stored in the Cloud Service.
Data Categories
Customer solely determines the categories of data per Cloud Service subscribed. Customer can configure the
data fields during implementation of the Cloud Service or as otherwise provided by the Cloud Service. The
transferred Personal Data typically relates to the following categories of data: name, phone numbers, e- mail
address, time zone, address data, system access / usage / authorization data, company name, contract data,
invoice data, plus any application-specific data that Authorized Users enter into the Cloud Service.
Special Data Categories (if appropriate)
The transferred Personal Data concerns the following special categories of data: As set out in the Agreement
(including the Order Form) if any.
Processing Operations / Purposes
The transferred Personal Data is subject to the following basic processing activities:
use of Personal Data to set up, operate, monitor and provide the Cloud Service (including operational and
technical Support)
provision of Services;
communication to Authorized Users
storage of Personal Data in dedicated Data Centers (multi-tenant architecture)
upload any fixes or upgrades to the Cloud Service
back up of Personal Data
computer processing of Personal Data, including data transmission, data retrieval, data access
network access to allow Personal Data transfer
execution of instructions of Customer in accordance with the Agreement.
Appendix 2 to the DPA and, if applicable, the Standard Contractual Clauses – Technical and
Organizational Measures
1.TECHNICAL AND ORGANIZATIONAL MEASURES
The following sections define Qualtrics’ current technical and organizational measures. Qualtrics may change
these at any time without notice so long as it maintains a comparable or better level of security. Individual
measures may be replaced by new measures that serve the same purpose without diminishing the security
level protecting Personal Data.
1.1Physical Access Control. Unauthorized persons are prevented from gaining physical access to
premises, buildings or rooms where data processing systems that process and/or use Personal Data
are located.
Measures:
Qualtrics protects its assets and facilities using the appropriate means based on the Qualtrics Security
Policy
In general, buildings are secured through access control systems (e.g., smart card access system).
As a minimum requirement, the outermost entrance points of the building must be fitted with a certified
key system including modern, active key management.
Depending on the security classification, buildings, individual areas and surrounding premises may be
further protected by additional measures. These include specific access profiles, video surveillance,
intruder alarm systems and biometric access control systems.
Access rights are granted to authorized persons on an individual basis according to the System and Data
Access Control measures (see Section 1.2 and 1.3 below). This also applies to visitor access. Guests and
visitors to Qualtrics buildings must register their names at reception and must be accompanied by
authorized Qualtrics personnel.
Qualtrics employees and external personnel must wear their ID cards at all Qualtrics
locations.
Additional measures for Data Centers:
All Data Centers adhere to strict security procedures enforced by guards, surveillance cameras, motion
detectors, access control mechanisms and other measures to prevent equipment and Data Center
facilities from being compromised. Only authorized representatives have access to systems and
infrastructure within the Data Center facilities. To protect proper functionality, physical security
equipment (e.g., motion sensors, cameras, etc.) undergo maintenance on a regular basis.
Qualtrics and all third-party Data Center providers log the names and times of authorized personnel
entering Qualtrics’ private areas within the Data Centers.
1.2System Access Control. Data processing systems used to provide the Cloud Service must be
prevented from being used without authorization.
Measures:
Multiple authorization levels are used when granting access to sensitive systems, including those storing
and processing Personal Data. Authorizations are managed via defined processes according to the
Qualtrics Security Policy
All personnel access Qualtrics’ systems with a unique identifier (user ID).
Qualtrics has procedures in place so that requested authorization changes are implemented only in
accordance with the Qualtrics Security Policy (for example, no rights are granted without authorization).
In case personnel leaves the company, their access rights are revoked.
Qualtrics has established a password policy that prohibits the sharing of passwords, governs responses
to password disclosure, and requires passwords to be changed on a regular basis and default passwords
to be altered. Personalized user IDs are assigned for authentication. All passwords must fulfill defined
minimum requirements and are stored in encrypted form. In the case of domain passwords, the system
forces a password change every six months in compliance with the requirements for complex passwords.
Each computer has a password-protected screensaver.
The company network is protected from the public network by firewalls.
Qualtrics uses up–to-date antivirus software at access points to the company network (for e-mail
accounts), as well as on all file servers and all workstations.
Security patch management is implemented to provide regular and periodic deployment of relevant
security updates. Full remote access to Qualtrics’ corporate network and critical infrastructure is protected
by strong authentication.
1.3Data Access Control. Persons entitled to use data processing systems gain access only to the Personal
Data that they have a right to access, and Personal Data must not be read, copied, modified or removed
without authorization in the course of processing, use and storage.
Measures:
As part of the Qualtrics Security Policy, Personal Data requires at least the same protection level as
“confidential” information according to the Qualtrics Information Classification standard.
Access to Personal Data is granted on a need-to-know basis. Personnel have access to the information
that they require in order to fulfill their duty. Qualtrics uses authorization concepts that document grant
processes and assigned roles per account (user ID). All Customer Data is protected in accordance with
the Qualtrics Security Policy.
All production servers are operated in the Data Centers or in secure server rooms. Security measures
that protect applications processing Personal Data are regularly checked. To this end, Qualtrics conducts
internal and external security checks and penetration tests on its IT systems.
An Qualtrics security standard governs how data and data carriers are deleted or destroyed once they
are no longer required.
1.4Data Transmission Control. Except as necessary for the provision of the Cloud Services in accordance
with the Agreement, Personal Data must not be read, copied, modified or removed without
authorization during transfer. Where data carriers are physically transported, adequate measures are
implemented at Qualtrics to provide the agreed-upon service levels (for example, encryption and lead-
lined containers).
Measures:
Personal Data in transfer over Qualtrics internal networks is protected according to Qualtrics Security
Policy.
When data is transferred between Qualtrics and its customers, the protection measures for the transferred
Personal Data are mutually agreed upon and made part of the relevant agreement. This applies to both
physical and network based data transfer. In any case, the Customer assumes responsibility for any data
transfer once it is outside of Qualtrics-controlled systems (e.g. data being transmitted outside the firewall
of the Qualtrics Data Center).
1.5Data Input Control. It will be possible to retrospectively examine and establish whether and by whom
Personal Data have been entered, modified or removed from Qualtrics data processing systems.
Measures:
Qualtrics only allows authorized personnel to access Personal Data as required in the course of their duty.
Qualtrics has implemented a logging system for input, modification and deletion, or blocking of Personal
Data by Qualtrics or its subprocessors within the Cloud Service to the extent technically possible.
1.6Job Control. Personal Data being processed on commission (i.e., Personal Data processed on a
customer’s behalf) is processed solely in accordance with the Agreement and related instructions of the
customer.
Measures:
Qualtrics uses controls and processes to monitor compliance with contracts between Qualtrics and its
customers, subprocessors or other service providers.
As part of the Qualtrics Security Policy, Personal Data requires at least the same protection level as
“confidential” information according to the Qualtrics Information Classification standard.
All Qualtrics employees and contractual subprocessors or other service providers are contractually bound
to respect the confidentiality of all sensitive information including trade secrets of Qualtrics customers
and partners.
1.7Availability Control. Personal Data will be protected against accidental or unauthorized destruction
or loss.
Measures:
Qualtrics employs regular backup processes to provide restoration of business-critical systems as and
when necessary.
Qualtrics uses uninterrupted power supplies (for example: UPS, batteries, generators, etc.) to protect
power availability to the Data Centers.
Qualtrics has defined business contingency plans for business-critical processes and may offer disaster
recovery strategies for business critical Services as further set out in the Documentation or incorporated
into the Order Form for the relevant Cloud Service.
Emergency processes and systems are regularly tested.
1.8Data Separation Control.
Measures:
Qualtrics uses the technical capabilities of the deployed software (for example: multi- tenancy, system
landscapes) to achieve data separation among Personal Data originating from multiple customers.
Customer (including its Controllers) has access only to its own data.
1.9Data Integrity Control. Personal Data will remain intact, complete and current during processing
activities.
Measures:
Qualtrics has implemented a multi-layered defense strategy as a protection against unauthorized modifications.
In particular, Qualtrics uses the following to implement the control and measure sections described above:
Firewalls;
Security Monitoring Center;
Antivirus software;
Backup and recovery;
External and internal penetration testing;
Regular external audits to prove security measures.
Appendix 3 to the DPA and, if applicable, the Standard Contractual Clauses
The following table sets out the relevant Articles of GDPR and corresponding terms of the DPA for illustration
purposes only.
Article of
GDPR
Section of
DPA
Click on link to see Section
28(1) 2 and
Appendix 2
Security of Processing and Appendix 2,
Technical and Organizational Measures.
28(2), 28(3) (d)
and 28 (4)
6 SUBPROCESSORS
28 (3) sentence
1
1.1 and
Appendix 1,
1.2
Purpose and Application. Structure.
28(3) (a) and
29
3.1 and 3.2 Instructions from Customer. Processing on
Legal Requirement.
28(3) (b) 3.3 Personnel.
28(3) (c) and 32 2 and
Appendix 2
Security of Processing and Appendix 2,
Technical and Organizational Measures.
28(3) (e) 3.4 Cooperation.
28(3) (f) and
32-36
2 and
Appendix 2,
3.5, 3.6
Security of Processing and Appendix 2,
Technical and Organizational Measures.
Personal Data Breach Notification. Data
Protection Impact Assessment.
28(3) (g) 4 Data export and Deletion
28(3) (h) 5 CERTIFICATIONS AND AUDITS
28 (4) 6 SUBPROCESSORS
30 8 Documentation; Records of processing
46(2) (c) 7.2 Standard Contractual Clauses.
Appendix 4
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
(Pursuant to Commission Decision of 5 February 2010 (2010/87/EU))
For the purposes of Article 26(2) of Directive 95/46/EC (or, after 25 May 2018, Article 44 et seq. of Regulation
2016/79) for the transfer of personal data to processors established in third countries which do not ensure an
adequate level of data protection
Customer also on behalf of the other Controllers
(in the Clauses hereinafter referred to as the ‘data exporter’)
and
Qualtrics, LLC
(in the Clauses hereinafter referred to as 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 sub-processor’ means any processor engaged by the data importer or by any other sub-processor of
the data importer who agrees to receive from the data importer or from any other sub-processor 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 sub-processor 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 sub-processor 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 sub-
processing 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 sub-processing, 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
sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior
written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor 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 sub-processor 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 sub- processor 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 sub-processor of its obligations in order to avoid its own
liabilities.
3. 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 sub-processor 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 sub-processor agrees that the data subject may issue a
claim against the data sub-processor 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 sub-processor 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.
2. 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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor,
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
Sub-processing
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 sub- processor which imposes the same obligations on the sub-processor as
are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection
obligations under such written agreement the data importer shall remain fully liable to the data exporter for the
performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing
operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing 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 sub-processing 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 sub-processor 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 sub-processor 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.