UXCam Data Processing Agreement (DPA)
UXCam Inc. provides the UXCam service (the “Service”) to the Client (“Client”) which allows us to understand mobile app usage. While providing the Service, it may be necessary for UXCam to process personal data for Clients (“Client Data”, see Annex I categories of data). UXCam is the Data Processor of such personal data and Client is the Data Controller. (“Controller”)
This Data Processing Agreement (the “DPA”) is entered into between Processor and Controller and becomes effective and remains in effect for as long as personal data is processed as per the Agreement.
This Data Processing Addendum (“DPA”) is an addendum to and forms part of the Master Service Agreement (“Agreement”) under which UXCam provides the services to the Client (“Controller”)
Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
1. Definitions
In this DPA, the following terms shall have the meanings set out below:
1.1 “Applicable Data Protection Laws” means the relevant data protection and privacy laws to which Parties are subject, including the General Data Protection Regulation 2016/679.
1.2 “Data Subjects” means the identified or identifiable person to whom Personal Data relates
1.3 “GDPR” means the General Data Protection Regulation 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
1.4 “Personal Data” means any any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as defined under the GDPR 2016/679 and includes any equivalent definition in the Applicable Data Protection Law.
1.5 “Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, as defined under the GDPR 2016/679 and includes any equivalent definition in the Applicable Data Protection Law.
1.6 “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; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law, as defined under the GDPR 2016/679 and includes any equivalent definition in the Applicable Data Protection Law.
1.7 “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller, as defined under the GDPR 2016/679 and includes any equivalent definition in the Applicable Data Protection Law.
1.8 “Services” means the content, tools, services, software application and products provided by UXCam and described in the Master Subscription Agreement.
1.9 “Sub-processor” means any Processor engaged by UXCam
1.10 “SCC”: the European Commission’s Implementing Decision of 4 June 2021 on standard contractual clauses for the transfer of personal data to processors established in third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council
2. Processing of Personal Data
2.1. Controller instructs Processor to process Personal Data on behalf of Controller.
2.2. Controller ensures that Controller is entitled to transfer the Personal Data to the Processor so that Processor may lawfully process the Personal Data on behalf of Controller.
2.3. Controller acknowledges that due to the nature of the Services, Processor cannot control and has no obligation to verify the Personal Data Controller transfers to Processor for processing when Controller uses the Services.
2.4. Controller accepts that Processor may have personal Data processed and accessible by its Sub-processors to any country or territory, all as reasonably necessary for the provision of the Services in accordance with Applicable Laws.
2.5. Controller and Processor further agree on Module Two of the attached Standard Contractual Clauses. Processor thus ensures to also process personal Data in compliance with these clauses.
3. Personnel:
3.1. Processor shall take reasonable steps to ensure that the access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
3.2. Processor shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access/use of Controller’s Personal Data. Processor shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
4. Data Protection Officer Processor has appointed a data protection officer, who shall perform duties in compliance with the Applicable laws. The data officer may be reached at:
TechGDPR DPC GmbH Willy-Brandt-Platz 2 12529 Berlin-Schönefeld E-Mail: uxcam.dpo@techgdpr.com
5. Security: Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor and each Processor affiliate, shall in relation to the Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate and applicable, the measures referred to in Article 32(1) of the GDPR.
6. Sub-processing:
6.1. Controller agrees to the commissioning of the sub-processor set forth in Annex III of the SCC incorporated in this Agreement.
6.2. Controller authorizes Processor to appoint (and permit each Sub-processor appointed in accordance with this section 5 to appoint) Sub processors in accordance with this Section 5 and any possible restriction in the Agreement.
6.3. Processor shall notify Controller with the mechanism set up below in Art 5.4 if it adds or removes Sub-processors, including relevant details of the Processing to be undertaken by the new Sub Processor at least 7 days prior to any such changes. Controller may object in writing on the proposed appointment of a new Sub-processor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such an event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Controller or Processor may suspend or terminate the Agreement to the extent that it relates to the Services which require the use of the proposed Sub Processor without bearing liability for such termination.
6.4. A list of all of our existing sub-processors will be always available on our website. Please keep in mind that if you want to subscribe to updates concerning UXCam's sub-processor List, please send an email to privacy@uxcam.com with a request to subscribe, and you will be provided with updates on any changes in this list.
6.5. With respect to each Sub processor, Processor will
6.5.1. enter into contractual arrangements with such Sub-processors binding them to provide the same level of data protection and information security to that provided for in this DPA and
6.5.2. take reasonable steps to ensure that the Sub Processor is committed to provide the level of protection for Personal Data required by the Agreement. If Sub Processor is located in third countries, Processor will conclude respective Standard Contractual Clauses with Sub Processors agreeing on Module Three and on additional safeguards, if an overall risk assessment requires further measures to be taken in order to ensure an adequate level of data protection.
7. Data Subject Rights
7.1. Controller shall be solely responsible for compliance with any statutory obligations concerning requests to exercise Data Subject rights under Data Protection Laws (e.g., for access, rectification, deletion of Controller Personal Data, etc.). Taking into account the nature of the Processing, Processor shall reasonably endeavour to assist Controller insofar as feasible, to fulfil Controller's said obligations with respect to such Data Subject requests, as applicable, at Controller’s sole expense
7.2. The Processor shall, to the extent legally permitted, promptly notify the Controller if the Processor receives a request from a Data Subject to exercise the Data Subject's right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”).
7.3. If a Data Subject should apply directly to the Processor to request the rectification, erasure or restriction of their Personal Data, the Processor may forward this request to the Controller without delay.
7.4. Taking into account the nature of the Processing, the Processor shall assist Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Controller obligation to respond to a Data Subject Request under Applicable Law.
7.5. To the extent Controller, in its use of the Services, does not have the ability to address a Data Subject Request, the Processor shall upon Controller’s request provide commercially reasonable efforts to assist Controller in responding to such Data Subject Request, to the extent the Processor is legally permitted to do so and the response to such Data Subject Request is required under the Applicable Law. To the extent legally permitted, the Controller shall be responsible for any costs arising from the Processor provision of such assistance.
8. Standard Contractual Clauses If any Clients Data transfer between Client and UXCam requires execution of Standard Contractual Clauses in order to comply with the Applicable Laws (where Client is the Data Exporter), the terms and conditions of Annex (Standard Contractual Clauses - Cross Border Transfer Mechanisms – Module two « Controller to Processor ») will apply.
8.1. To the extent there is any conflict between the Standard Contractual Clauses and any other terms in this Addendum, the provisions of the Standard Contractual Clauses will prevail.
ANNEX
STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)(1)for the transfer of personal data to a third country.
2. The Parties: 1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and 2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
(1) - Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision […].
Clause 2
Effect and invariability of the Clauses
These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
Clause 8 - Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
Clause 12 - Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
Clause 13;
Clause 15.1(c), (d) and (e);
Clause 16(e);
Clause 18 - Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 - Optional
Docking clause
(omitted)
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
MODULE TWO: Transfer controller to processor
8.1 Instructions
The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union(2) (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
(2) - The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
8.9 Documentation and compliance
The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
MODULE TWO: Transfer controller to processor
OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least 7 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.(3) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
(3) - This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
Clause 10
Data subject rights
MODULE TWO: Transfer controller to processor
The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
MODULE TWO: Transfer controller to processor
In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to: 1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13; 2. refer the dispute to the competent courts within the meaning of Clause 18.
The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
MODULE TWO: Transfer controller to processor
Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
MODULE TWO: Transfer controller to processor
The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements: 1. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred; 2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards(4); 3. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation
The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by
the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
(4) - As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.
Clause 15
Obligations of the data importer in case of access by public authorities
MODULE TWO: Transfer controller to processor
15.1 Notification
The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it: 1. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or 2. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where: 1. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension; 2. the data importer is in substantial or persistent breach of these Clauses; or 3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority
of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
[For Modules One, Two and Three: Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.] The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
MODULE TWO: Transfer controller to processor
These Clauses shall be governed by the law of the in which the data exporter is established.
Clause 18
Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
This DPA is subject to the governing law and jurisdiction provisions in the Agreement unless and to the extent required otherwise by applicable data protection and privacy laws.
ANNEX I
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
Data exporter(s): Client
Data importer(s):
Name: UXCam Inc. Address: 315 Montgomery St, 10th Floor San Francisco, CA, 94104 e-mail: legal@uxcam.com Role: Processor
B. DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
Categories of data subjects whose personal data is transferred
The identified or identifiable person to whom Personal Data relates that is provided to Data Importer by Data Exporter through the Services.
Categories of personal data transferred
Name, Addresses, telephone numbers, email and IP addresses of UXCam users.
Additionally, UXCam does not intentionally collect or process any end user personal data in the provision of its product or services.
However, personal data may from time to time be processed through the UXCam services where the data exporter does not use the UXCam API to mask texts, elements, or screens in the exporter app from being tracked/recorded by the UXCam SDK. As such, the data exporter is solely responsible for ensuring the legality of any personal data it chooses to process using the UXCam App.
The frequency of the transfer
Continuous basis
Purpose(s) and nature of the data transfer and further processing
The personal data might be processed by the data importer to provide the Services described in the Master Service Agreement, maintain and improve the Service, infrastructure support, customer service.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Duration of the Agreement
C. COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
The data importer agrees to submit to the applicable exporter supervisory authority according to Article 13 of the SCCs.
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Controller decides which data they wish to record and store. They can exclude any personal data of the user.
Possibility of excluding sensitive Views to prevent tracking user information. Controller can choose to hide texts (when collecting personal data with text fields), screen views (if they want to hide a specific section of the screen, or the whole screen.
Sensitive information from controllers’ app can be hidden before releasing it under red boxes on the device before rendering the video and therefore never sent to UXCam.
Data is encrypted at rest using AES-256 encryption algorithm.
Data is encrypted end-to-end between the user's device and AWS using SSL.Every protected object is encrypted with a unique encryption key. This object key itself is then encrypted with a regularly rotated master key. Additional security is provided by storing the encrypted data and encryption keys in different hosts.
Instances running on the same physical machine are isolated from each other via the Xen hypervisor (AWS).
In addition, the AWS firewall resides within the hypervisor layer, between the physical network interface and the instance's virtual interface. All packets must pass through this layer, thus an instance’s neighbours have no more access to that instance than any other host on the Internet and can be treated as if they are on separate physical hosts. The physical RAM is separated using similar mechanisms.
Clients are logically separated through the use of account ids, access control and roles define what users have access to.
The database containing visitor and usage data is only accessible from the application servers and no outside sources are allowed to connect to the database.
UXCam has signed a data processing agreement (DPA) with Amazon Web Services (AWS) which includes the SCCs.
UXCam uses SEIM tool to identify suspicious behavior and potentially compromised systems on the production platform.Any code changes that are required to remediate vulnerabilities are peer reviewed. All changes go through the development and release process including QA with regression testing.
UXCam infrastructure is hosted on Amazon web services (AWS). AWS has successfully completed ISO 27001 and SOC 2 certifications.
UXCAM is PCI compliant and respects and protects clients financial information. When a client subscribes, you will be redirected to Braintree, where they can independently complete the purchase. Braintree is a trusted, Level 1 PCI Service Provider.
Implementation of the following set of policies:
Access Control Policy
Asset Management Policy
Business Continuity and Disaster Recovery Plan
Code of Conduct
Cryptography Policy
Data Management Policy
Human Resource Security Policy
Incident Response Plan
Information Security Policy (AUP)
Information Security Roles and Responsibilities
Operations Security Policy
Physical Security Policy
Risk Management Policy
Secure Development Policy
Third-Party Management Policy
ANNEX III – LIST OF SUB-PROCESSORS
AWS Inc (USA) - Data Hosting Services
UXCam GmbH (Germany) - Customer support
UXCam Pvt Ltd (Nepal) - Technical support
Intercom Inc (USA)- Customer support
Planhat Inc (USA) - Customer portal- UXCam usage statistics, goals, checklist