Data Processing Agreement

LAST UPDATED:  DECEMBER 18TH, 2019
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SurveySparrow Inc., Data Processing Agreement (DPA), aligns with the Contractual Clauses put forth by the European Commission and reflects the mutual agreement between the parties regarding the terms governing the Processing of Personal Data under the SurveySparrow Inc., Terms and Conditions. This DPA is an addendum to the Terms of Service. Upon its incorporation into the Terms of Service, the DPA will form a part of the Terms of Service.

This Agreement has also been entered to ensure, proper arrangements relating to Personal Data privacy in compliance with the requirements of Article 28 of the General Data Protection Regulation (GDPR).

This Agreement has also been entered to ensure the utmost privacy of data to comply with the requirements of the California Consumer Privacy Act (CCPA), effective from 1 January, 2020.

1. DEFINITIONS

Capitalized terms used but not defined in this Agreement shall have the same meaning as set forth in Article 4 of the GDPR.

“Data” or “Personal Data” means personal data, as defined in Article 4 of the GDPR, in the computing environment(s) of the Customer, to which SurveySparrow is provided access in order to provide Services under the Services Agreement.

“Data Controller” or “Controller” or “Data Exporter” means the Customer entity who is using the Services of SurveySparrow Inc. either FREE or underpaid subscription model;

“Data Processor” or “Processor” or “Data Importer” means SurveySparrow Inc.

“Data Protection Officer” means the designated representative of the Parties who will be the point of contact for any Data Privacy/Security related issues/queries;

“GDPR” means the General Data Protection Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC.

“Instruction” means the written, documented instruction, issued by the Controller to the Processor, requesting Processor to perform a specific action on the Personal Data (including, but not limited to, updating, blocking, deleting, depersonalizing, transferring);

“Personal Data Breach” means a security incident, leading to the accidental or unlawful destruction, loss, alteration, unauthorized divulgence, or access to, Personal Data transmitted, stored or otherwise processed;

“Services” means the services agreed to be provided by Data Processor to the Data Controller under the Services Agreement, in relation to the proprietary online survey application viz. ‘SurveySparrow’ owned by the Data Processor, including hosting of such application on cloud server, providing access to authorised users of the Customer, trouble shooting related services, consultancy services on request;

“Standard Contractual Clauses” means the clauses elucidated in Exhibit 1 in tandem with the European Commission’s decision notified under document C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council.

“Sub-processor” or “Sub-data Processor” means the service providers who interact with the Controller’s Data (in part or full) so as to offer the Services promised by the Data Processor as per the Services Agreement.

2. INTRODUCTION

• The terms of this Agreement shall apply to the extent Personal Data is provided to Processor or the Processor is exposed to while providing Services.
• In this Agreement the Customer shall be the Data Controller and SurveySparrow Inc. shall be the Data Processor, except when the Customer acts as a processor of Personal Data, in which situation SurveySparrow Inc. shall be a sub-processor.
• The Data Controller is responsible for providing the Processor access only to such Personal Data as needed for the performance of the Services.
• The SurveySparrow software application is hosted from the USA and consequently, the Personal Data will be stored in the servers located in the USA. The Data Controller may have an option to store the Data in EU, on mutually agreed terms.

3. DETAILS OF PROCESSING

• Data Subjects: Include the Data Controller’s employees, contractors, customers, prospects, suppliers and subcontractors.
• Personal Data: This includes contact information, the extent of which is determined and controlled by the Customer in its sole discretion, and other Personal Data such as navigational data (including website usage information), email data, system usage data, application integration data, and other electronic data submitted, stored, sent, or received by end users via the Services.
• Nature of the Processing: The subject-matter of Processing of Personal Data by Data Processor is the provision of the Services to the Data Controller that involves the Processing of Personal Data, as specified in the Services Agreement.
• Purpose of the Processing: Personal Data will be Processed for purposes of providing the Services set out in the Services Agreement.
• Duration of the Processing: Personal Data will be Processed for the duration of the Agreement, subject to Clause 8 of this Agreement.

4. DATA PROCESSOR OBLIGATION

The Data Processor agrees to process the Data only in accordance with relevant data protection laws and in particular on the following conditions:

5. DATA CONTROLLER OBLIGATION

The Data Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data. The Data Controller:

• represents and warrants to comply with the terms of the Agreement, and all applicable data protection laws.
• represents and warrants that any and all necessary permissions and authorizations have been obtained, necessary to permit SurveySparrow Inc., its affiliates and Sub-Processors, to execute their rights or perform their obligations under this Agreement.
• Agrees to be responsible for compliance with all applicable data protection legislation, including requirements with regards to the transfer of Personal Data under this Agreement.
• Agrees to ensure that all affiliates of the Data Controller who use the Services shall comply with the obligations set out in this Agreement.

6. PERSONAL DATA BREACH

The Data Processor will promptly, and without undue delay, notify the Data Controller if a security incident occurs, so long as applicable law allows this notice. The Data Processor may limit the scope of, or refrain from delivering, any disclosures to the extent reasonably necessary to avoid compromising the integrity of its security, an ongoing investigation, or any customer’s or end user’s data.

Neither the Data Controller nor the Data Processor shall be deemed liable to the other Party for any circumstances beyond the control of the Party, which the Party upon entering this Agreement could not have taken into consideration, avoided or overcome. Circumstances at a Sub-processor shall only be considered force majeure, if an obstacle is present at the Sub-processor which is subject to this item, and which the Party could not have avoided or overcome.

7. INTERNATIONAL TRANSFER OF DATA

SurveySparrow Inc., may transfer Personal Data to the United States and/or to other third countries where SurveySparrow Inc., or its Sub-processors operate for purposes of offering the services as mentioned in Exhibit 2. SurveySparrow Inc. will follow the requirements of this Agreement regardless of where such Personal Data is stored or processed.

The “Standard Contractual Clauses – Processor, specified in European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of data to processors established in third countries under the European Data Protection Directive, attached hereto as Exhibit I shall apply to the Personal Data, so transferred.

In addition, SurveySparrow may process and disclose Personal Data:

• in connection with any anticipated or actual merger, acquisition, sale, bankruptcy or other reorganization of some or all of its business, subject to the obligation to protect Personal Data consistent with the terms of the Agreement; or3
• for legal purposes, including enforcement of its rights, detecting and preventing fraud, protecting against harm to the rights or property of SurveySparrow Inc., or the Controller’s users, or the public;  and
• as required by law, including in response to a subpoena, judicial or administrative order, or other binding instrument (each a “Demand”). Except where prohibited by law, SurveySparrow Inc., will promptly notify the Data Controller of any Demand and provide the Controller reasonable assistance to facilitate timely response to the Demand.

8. TERM & TERMINATION OF AGREEMENT

This Agreement between the Data Controller and the Data Processor shall be valid until it is voluntarily terminated by the either Party.

The Data Controller may terminate this Agreement by giving a notice of 10 days to the Data Processor, after sending a written notice to privacy@surveysparrow.com.

The Agreement will however, automatically stand terminated with effect to discontinuance of Services between the two parties, either due to non-renewal or cancellation of Services Agreement.

Upon termination of this Agreement, the Data Processor will delete all Personal Data and delete any copies no later than 30 days after termination of this Agreement, upon request.

9. MISCELLANEOUS

The term Agreement means and includes this document and the annexes, exhibits referred to herein and all amendments thereto. If any term, condition, section or provision of this Agreement becomes invalid or be so judged, the remaining terms, conditions, sections and provisions shall be deemed severable and shall remain in force. The failure to exercise, or delay in exercising any right, power or remedy vested in this Agreement shall not constitute a waiver by that party of that or any other right, power or remedy. This Agreement constitutes the entire agreement between the Parties, and supersedes any prior understandings relating to the subject matter hereof, and may be amended or supplemented only in a written form signed by the Parties. A Party shall not be liable for any event that is beyond the reasonable control of that Party, including acts of god, terrorism, explosions, floods, mechanical breakdowns, strikes, labor unrest, breakdown in essential utilities, etc. In this Agreement, paragraph titles are used for identification, convenience and ease of reference.

IN WITNESS WHEREOF, this Agreement is entered into and becomes a binding part of the Services Agreement with effect from the date first set out above.

Exhibit 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 the Data Controller AND the Data Processor,

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 Exhibit 1. Data Processing Agreement 9

Background

The data exporter has entered into a data processing Agreement (“Agreement”) with the data importer. Pursuant to the terms of the Agreement, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.

Clause 1. Definitions

For the purposes of the Clauses:

1. ‘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; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of “personal data” is expanded to include those data” are added.]
2. ‘the data exporter’ means the controller who transfers the personal data;
3. ‘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; [If these Clauses are not governed by the law of a Member State, the words “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” are deleted.]
4. ‘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;
5. ‘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;
6. ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Data Processing Agreement 10

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 Exhibit 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:

1. 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;
2. 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;
3. that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Exhibit 2 to this contract;
4. 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, unauthorized 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 Data Processing Agreement 11 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;
5. that it will ensure compliance with the security measures;
6. 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;
7. 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 Exhibit 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;
8. 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
9. that it will ensure compliance with Clause 4(a) to (i).

Clause 5. Obligations of the Data Importer

The data importer agrees and warrants:

1. 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;
2. 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;
3. that it has implemented the technical and organizational security measures specified in Exhibit 2 before processing the personal data transferred
4. that it will promptly notify the data exporter about:
   • 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, Data Processing Agreement 12
   • any accidental or unauthorized access, and iii. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
5. 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;
6. 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;
7. 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 Exhibit 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;
8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
9. that the processing services by the subprocessor will be carried out in     accordance with Clause 11;
10. 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.
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 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 Data Processing Agreement 13 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:
2. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
3. to refer the dispute to the courts in the Member State in which the data exporter is established.
4. 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 Data Processing Agreement 14 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 sub-processor’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
of the Standard Contractual Clauses

This Appendix forms part of the Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

1. Data exporter

The data exporter is the Customer, as defined in the Services Agreement.

2. Data importer

The data importer is SurveySparrow Inc., a global provider of online survey software.

3. Data subjects

Categories of Data Subjects set out under Clause 3 of the Data Processing Agreement to which the Clauses are attached.

4. Categories of Data

Categories of Personal Data are set out under Clause 3 of the Data Processing Agreement to which the Clauses are attached.

5. Special categories of data (if appropriate)

The parties do not anticipate the transfer of special categories of data.

6. Processing operations

The processing activities are set out under Clause 3 of the Data Processing Agreement to which the Clauses are attached:

Appendix 2
to the Standard Contractual Clauses

This Appendix forms part of the Clauses. Description of the technical and organisational security measures implemented by the Data Importer is given here below:

1. Data Protection Officer/Executives

• Each party will designate a person who will be incharge of communication between the parties via email so as to execute any specific instructions. These officers will serve as the primary point of contact at either party’s end.

2. Security Practices

• Data Processor takes regular backups of customer data to prevent any major data loss during a security incident.
• All data stored is encrypted so that the customer’s personal data is stored securely.
• Servers and data are managed by Amazon Web Services (AWS – Cloud Computing Services).
• Security policies and security groups are intact so that only authorized people have access to Servers.

3. Technical and Organizational Security Measures

Exhibit 2