Data Processing Agreement
This Data Processing Agreement (this “DPA”) is incorporated into, and is subject to the terms and conditions of, the Agreement between the customer entity that is a party to the Agreement (“Customer”) and Fullstory, Inc. (“Fullstory”) and reflects the parties’ agreement with regard to the Processing of Customer Data. In the course of providing the Services to Customer pursuant to the Agreement, Fullstory may Process Customer Data (as defined below) on behalf of Customer and the parties agree to comply with the following provisions with respect to any Customer Data.
1.Definitions.
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity, where “control” means, for the purposes of this definition, an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question.
“Agreement” means Fullstory’s Terms and Conditions available at https://www.fullstory.com/legal/terms-and-conditions, as updated from time to time, or other written or electronic agreement, which govern the provision of the Services to Customer, as such terms or agreement may be updated from time to time.
“Customer Data” means any Personal Data that Fullstory Processes on behalf of Customer via the Services, as more particularly described in this DPA.
“Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of, or access to, Customer Data.
“Data Controller” means the natural or legal person, public authority, agency, or any other body which alone or jointly with others determines the purposes and means of the Processing of Personal Data.
“Data Processor” means any natural or legal person, public authority, agency, or any other body which Processes Personal Data on behalf of a Data Controller or on the instruction of another Data Processor acting on behalf of a Data Controller.
“Data Protection Laws” means all applicable laws and regulations relating to the processing of Personal Data and privacy that may exist in the relevant jurisdictions, including, where applicable, 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 (General Data Protection Regulation) (the “EU GDPR”); Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendment Etc.) (EU Exit) Regulations 2019 (the “UK GDPR”); US Data Protection Laws; the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); the Brazilian General Data Protection Law (the “LGPD”); Federal Law no. 13,709/2018; the Privacy Act 1988 (Cth) of Australia, as amended (“Australian Privacy Law”); the Personal Data Protection Act 2012 (No. 26 of 2012) (the “PDPA”); the Swiss Data Protection Act (the “FADP”); and any other privacy laws or regulations applicable to the Processing of Customer Data under the Agreement .
“Data Subject” means an identified or identifiable natural person whom Personal Data relates.
“End-User Data” means any Personal Data collected through and related to the Customer’s end-users, obtained through the Customer’s use of the Services.
“Notification Email Address(es)” means the email address(es) designated by Customer in its administrator account settings to receive “Critical Incidents” notifications.
“Personal Data” means any information relating to an identified or identifiable living individual, including information that can be linked, directly or indirectly, with a particular Data Subject.
“Process”, “Processing” or “Processed” means any operation or set of operations which is performed upon Customer Data whether or not by automated means, according to the definitions given to such terms in the EU GDPR and the UK GDPR.
“Sensitive Data” means any Personal Data that requires a heightened degree of protection by applicable law. Sensitive Data includes, but is not limited to, social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act, and special categories of data as defined in the EU GDPR and the UK GDPR.
“Services” means all services provided by Fullstory in accordance with, and as defined in, the Agreement.
“Standard Contractual Clauses” means the Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, attached hereto as Exhibit C.
“Sub-processor” means any sub-contractor engaged in the Processing of Customer Data in connection with the Services.
“Supervisory Authority” means any regulatory, supervisory, governmental, or other competent authority with jurisdiction or oversight over compliance with the Data Protection Laws.
“UK IDTA” means the International Data Transfer UK Addendum to the EU Commission Standard Contractual Clauses issued by the United Kingdom Information Commissioner under 119A(1) Data Protection Act 2018.
“US Data Protection Law” means any applicable United States data privacy or data protection laws, including but not limited to (i) California Consumer Privacy Act (the “CCPA”); (ii) the Colorado Privacy Act (“CPA”); (iii) the Virginia Consumer Data Protection Act (“VCDPA”); (iv) the Connecticut Data Privacy Act (“CDPA”); (v) the Utah Consumer Privacy Act (“UCPA”); and any corresponding or similar United States state or federal laws or regulations relating to the use or protection of data including any amendment, update, modification to or re-enactment of such laws.
2. Appointment and Data Processing.
2.1 Subject to the terms of the Agreement, Customer is the Data Controller of Customer Data or has been instructed by and obtained the authorization of the relevant Data Controller(s) to enter into this DPA in the name and on behalf of such Data Controller(s). Customer is responsible for obtaining all of the necessary authorizations and approvals to enter, use, provide, store, and Process Customer Data to enable Fullstory to provide the Services. Customer, as the Data Controller, hereby appoints Fullstory as the Data Processor in respect of all Processing operations required to be carried out by Fullstory on Customer Data in order to provide the Services in accordance with the terms of the Agreement.
2.2 Fullstory will only Process Customer Data upon Customer’s documented instructions and immediately notify Customer in writing if, in Fullstory’s reasonable opinion, Customer’s instructions infringe Data Protection Laws; provided that Customer acknowledges that the Services will Process Customer Data in accordance with Customer’s configurations, which Fullstory does not monitor.
2.3 Customer instructs Fullstory to Process Customer Data for the following purposes: (a) Processing in accordance with the Agreement; (b) Processing initiated by Customer through the Services; (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via support tickets, email communications and chat platforms) where such instructions are consistent with the terms of the Agreement; and (d) Processing otherwise required of Fullstory by applicable laws. This DPA and the Agreement contain Customer’s sole instructions to Fullstory for the Processing of Customer Data.
2.4 Customer will not provide (or cause to be provided) any Sensitive Data to Fullstory for Processing under the Agreement, and Fullstory will have no liability whatsoever for Sensitive Data, whether in connection with a Data Breach or otherwise.
2.5 Customer represents and warrants that (a) on an ongoing basis, there is, and there will be throughout the term of the Agreement, a legal basis for the Processing by Fullstory of Customer Data on behalf of Customer in accordance with this DPA and the Agreement (including any and all instructions issued by Customer from time to time in respect of such Processing); and (b) it will honor the rights of Data Subjects pursuant to Data Protection Laws. Customer will have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired the Customer Data.
2.6 The subject matter, nature, purpose, and duration of the Processing of Customer Data, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this DPA.
2.7 Fullstory will maintain complete, accurate, and up to date written records of all Processing activities carried out on behalf of Customer containing information required under any applicable Data Protection Laws.
3. Sub-processors.
3.1 Fullstory currently utilizes the Sub-processors set forth in Exhibit B. Fullstory will (a) provide an up-to-date list of the Sub-processors it has appointed upon written request from Customer; and (b) notify Customer if it adds or removes Sub-processors prior to any such changes. Customer may object in writing to Fullstory’s appointment of a new Sub-processor within thirty (30) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties will discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Customer may suspend or terminate the Agreement.
3.2 Fullstory will (a) 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 (b) be liable for the acts and omissions of its Sub-processors to the same extent Processor would be liable if performing the Services of each Sub-processor directly under the terms of the Agreement.
4. Authorized Personnel.
Fullstory will ensure that its personnel engaged in the Processing of Customer Data are informed of the confidential nature of the Customer Data, have received appropriate training on their responsibilities, and have executed written confidentiality agreements committing themselves to confidentiality. Fullstory will ensure that Fullstory’s access to Customer Data is limited to those personnel performing Services in accordance with the Agreement.
5. Security Responsibilities.
5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Fullstory will maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including, but not limited to, the security measures set out at: https://help.fullstory.com/hc/en-us/articles/360020624254-Security-Overview (the “Security Measures”).
5.2 Fullstory will implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate: (a) the pseudonymization and encryption of Customer Data; (b) the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services; (c) the ability to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing, and evaluating the effectiveness of security measures.
5.3 Customer is responsible for reviewing the information made available by Fullstory relating to data security and making an independent determination as to whether the Service meets Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to changes, from time to time, to reflect technological developments and industry practices; provided, always, that such changes do not result in any objective degradation to the security of Customer Data, the manner in which the Services are provided, or which fall below the standard of any applicable law.
5.4 Notwithstanding the above, Customer agrees that, except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials (if and as applicable), protecting the security of Customer Data when in transit to and from the Services, and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to Fullstory in connection with the Services.
6. Data Breach Provisions.
6.1 If Fullstory becomes aware of a Data Breach, Fullstory will, without undue delay, (a) notify Customer of the Data Breach; and (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Data Breach.
6.2 In the event of a Data Breach, Fullstory will provide Customer with all reasonable assistance in dealing with the Data Breach, in particular in relation to making any notification to a Supervisory Authority or any communication to Data Subject. In order to provide such assistance, and taking into account the nature of the Services and the information available to Fullstory, the notification of the Data Breach will include, at a minimum, the following: (a) a description of the nature of the Data Breach including the categories and approximate number of data records concerned; (b) the likely consequences of the Data Breach; and (c) the measures taken or to be taken by Fullstory to address the Data Breach, including measures to mitigate any possible adverse consequences. Where, and insofar as, it is not possible for Fullstory to provide such information at the time of the notice, then such notice will nevertheless be made, in as complete a form as possible, and the remaining required information may be provided by Fullstory, in phases and as it becomes available, without undue delay.
7. Deletion; Access and Export of Customer Data.
7.1 On the expiration or termination of the Agreement (or, if applicable, on expiration of any post-termination period during which Fullstory may agree to continue providing access to the Services), Fullstory will delete any Customer Data then in its possession and/or control, unless applicable legislation or legal process prevents it from doing so.
7.2 During the term of the Agreement, Fullstory will make Customer Data available to Customer in a manner consistent with the functionality of the Services and in accordance with the terms of the Agreement. To the extent Customer, in its use and administration of the Services during the term of the Agreement, does not have the ability to amend or delete Customer Data (as required by Data Protection Laws), or migrate Customer Data to another system or service provider, Fullstory will, at Customer’s reasonable expense, comply with any reasonable requests from Customer to assist in facilitating such actions to the extent Fullstory is legally permitted to do so and has reasonable access to the relevant Customer Data.
8. Audits.
8.1 At Customer’s written request, Fullstory will, not more than once annually, allow audits, including inspections, to verify Fullstory’s compliance with obligations under Data Protection Laws and this DPA, through Fullstory first supplying (on a confidential basis) a summary copy of its ISO 27001 certification and/or SOC 2 Type 2 report. If more information is required, Fullstory will allow an audit to be carried out either (a) by an independent third party audit firm bound by a duty of confidentiality selected by Customer and approved by Fullstory (which approval will not unreasonably be withheld or delayed) and where applicable, in agreement with the competent Supervisory Authority, or (b) by a Supervisory Authority. The parties will agree on the scope of the audit prior to the audit being carried out. If Customer requests that Fullstory incur out-of-pocket costs to assist Customer in the audit, then Fullstory is entitled to a reasonable, pre-approved reimbursement for any costs of the audit incurred by Fullstory.
8.2 In addition to the foregoing, Fullstory will respond to all reasonable requests for information made by Customer to confirm Fullstory’s compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, by making additional information available regarding its information security program upon Customer’s written request to Fullstory, provided that Customer may not exercise this right more than once annually.
9. Assistance on Data Protection Impact Assessment.
To the extent required under applicable Data Protection Laws, Fullstory will, at Customer’s expense and taking into account the nature of the Processing and the information available to Fullstory, provide all reasonably requested information regarding the Services to enable Customer to carry out data protection impact assessments or prior consultations with any Supervisory Authorities, as required by such Data Protection Laws.
10. International Transfers and Data Storage.
10.1 Customer acknowledges that Fullstory may transfer and Process Customer Data to and in the United States and anywhere else in the world where Fullstory or its Sub-processors maintain Processing operations. Fullstory will, at all times, ensure that such transfers are made in compliance with the requirements of all applicable Data Protection Laws.
10.2 Customer acknowledges that Customer may elect to store their Customer Data, and End-User Data, in the European Union. Regardless of data residency location, Customer Data will be processed and stored in both the European Union and North America. End-User Data will be stored in the European Union, but under certain circumstances may be processed in the United States and Canada to provide the Services requested by Customer or as necessary to comply with applicable law. All transfers of Customer Data and End-User Data out of the European Union shall be governed by the Standard Contractual Clauses in Exhibit C.
10.3 Fullstory participates in and certifies compliance with the EU-U.S. Data Privacy Framework, the UK Extension to the EU-U.S. Data Privacy Framework, and Swiss-U.S. Data Privacy Framework (the “Data Privacy Framework”). As required by the Data Privacy Framework, Fullstory will (i) provide at least the same level of privacy protection as is required by the Data Privacy Framework principles; (ii) notify Customer is Fullstory makes the determination that it can no longer meet its obligation to provide the same level of protection, as is required by the Data Privacy Framework principles, and (iii) upon notice, take reasonable and appropriate steps to remediated unauthorized processing.
10.4 To the extent that Fullstory is a recipient of Customer Data originating from the European Economic Area in a country that is not recognized as providing an adequate level of protection for Personal Data as described in the EU GDPR, the parties agree to abide by the Standard Contractual Clauses. For the purposes of the descriptions in the Standard Contractual Clauses, Fullstory agrees that it is the “data importer” and Customer is the “data exporter” (notwithstanding that Customer may itself be an entity located outside Europe). To the extent that Customer is acting as a Data Controller of Customer Data and Fullstory is acting as a Data Processor of Customer Data, Module Two of the Standard Contractual Clauses shall apply. To the extent that Customer is acting as a Data Processor of Customer Data and Fullstory is acting as a Data Processor of Customer Data, Module Three of the Standard Contractual Clauses shall apply. Each party’s signature to this DPA will be considered a signature to the Standard Contractual Clauses (including the annexes).
10.5 To the extent that Fullstory is a recipient of Customer Data originating from Switzerland, the following additional requirements shall apply to the extent that the data transfers are exclusively subject to the FADP or are subject to both the FADP and the EU GDPR: (a) the term ’member state’ must not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18 (c) of the Standard Contractual Clauses; (b) insofar as the data transfers underlying the Standard Contractual Clauses are exclusively subject to the FADP, references to the EU GDPR are to be understood as references to the FADP; (c) insofar as the data transfers underlying the Standard Contractual Clauses are subject to both the FADP and the EU GDPR, the references to the EU GDPR are to be understood as references to the FADP insofar as the data transfers are subject to the FADP; and (d) until the revised Swiss Data Protection Act (rev. FADP) enters into force, the provisions of the Standard Contractual Clauses also protect the Customer Data to the extent that these provisions are applicable to them under Swiss law.
10.6 To the extent that Fullstory is a recipient of Customer Data originating from the United Kingdom in a country that is not recognized as providing an adequate level of protection for Personal Data as described in the UK GDPR, the parties agree that the Standard Contractual Clauses shall be read in accordance with, and deemed amended by, the provisions of Part 2 (Mandatory Clauses) of the UK IDTA (https://ico.org.uk/media/for-organisations/documents/4019483/international-data-transfer-addendum.pdf), which is incorporated herein by reference as if fully set forth in this DPA. The parties confirm that the information required for the purposes of Part 1 (Tables) of the UK IDTA is set out in the Agreement. Each party’s signature to this DPA will be considered a signature to the UK IDTA.
10.7 To the extent Fullstory adopts another lawful mechanism for the transfer of Customer Data that is not described in this DPA (“Alternative Transfer Mechanism”), the Alternative Transfer Mechanism will apply instead of the transfer mechanisms described in this DPA (but only to the extent such Alternative Transfer Mechanism is approved by the appropriate Supervisory Authority). In addition, if and to the extent that a court of competent jurisdiction or Supervisory Authority orders (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer Customer Data (within the meaning of applicable Data Protection Laws), Fullstory may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of Customer Data.
11. Additional Safeguards for the Transfer and Processing of Personal Data from the EU, Switzerland, and the United Kingdom.
Fullstory represents and warrants that:
11.1 As of the date of this contract, it has not received any directive under Section 702 of the U.S. Foreign Intelligence Surveillance Act, codified at 50 U.S.C. §1881a (“FISA Section 702”).
11.2 Fullstory is not eligible to be required to provide information, facilities, or assistance under FISA Section 702; or that no court has found Fullstory to be the type of entity eligible to receive process issued under FISA Section 702: (i) an “electronic communication service provider” within the meaning of 50 U.S.C §1881(b)(4) or (ii) a member of any of the categories of entities described within that definition.
11.3 Fullstory is not the type of provider that is eligible to be subject to upstream collection (“bulk” collection) pursuant to FISA Section 702, as described in paragraphs 62 & 179 of the judgment in the EU Court of Justice Case C-311/18, Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems (“Schrems II”). Therefore the only FISA Section 702 process Fullstory could be eligible to receive, if it is an “electronic communication service provider” within the meaning of 50 U.S.C §1881(b)(4), would be based on a specific “targeted selector” i.e., an identifier that is unique to the targeted endpoint of communications subject to the surveillance.
11.4 Fullstory will never comply with any request under FISA Section 702 for bulk surveillance, i.e., a surveillance demand whereby a targeted account identifier is not identified via a specific “targeted selector” (an identifier that is unique to the targeted endpoint of communications subject to the surveillance).
11.5 Fullstory will use all reasonably available legal mechanisms to challenge any demands for data access through the national security process it receives as well as any non-disclosure provisions attached thereto.
11.6 Fullstory will take no action pursuant to U.S. Executive Order 12333.
11.7 Fullstory will promptly notify Customer if Fullstory can no longer comply with the applicable Standard Contractual Clauses or the clauses in this Section. Fullstory will not be required to provide Customer with specific information about why it can no longer comply, if providing such information is prohibited by applicable law. Such notice will entitle Customer to terminate the Agreement (or, at Customer’s option, affected statements of work, order forms, and like documents thereunder) and receive a prompt pro-rata refund of any prepaid amounts thereunder. This is without prejudice to Customer’s other rights and remedies with respect to a breach of the Agreement.
12. Data Subject Requests and Other Communications.
12.1 Fullstory will, to the extent required by the Data Protection Laws, promptly notify Customer upon receipt of a request by a Data Subject to exercise Data Subject rights under the applicable Data Protection Laws. Fullstory will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services.
12.2 Fullstory will, taking into account the nature of the Processing, assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the Data Subject’s rights under the Data Protection Laws. If requested by Fullstory, Customer will provide such information to Fullstory as is reasonable and necessary, including, but not limited to, user IDs associated with such Data Subject, for Fullstory to unambiguously identify the Data Subject requesting to exercise their Data Subject rights.
13. Permitted Disclosures of Customer Data.
Fullstory may disclose Customer Data to the extent such data is required to be disclosed by law, by any government or Supervisory Authority, or by a valid and binding order of a law enforcement agency (such as a subpoena or court order), or other authority of competent jurisdiction.If any law enforcement agency government or Supervisory Authority sends Fullstory a demand for disclosure of Customer Data, then Fullstory will attempt to redirect the law enforcement agency, government, or Supervisory Authority to request that data directly from Customer and Fullstory is entitled to provide Customer’s basic contact information to such law enforcement agency, government, or Supervisory Authority. If compelled to disclose Customer Data pursuant to, then Fullstory will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy, unless notice is prohibited by the law enforcement agency, government, or Supervisory Authority.
14. Liability; Limitations.
Each party’s and all of its Affiliates’ liability taken together in the aggregate arising out of or related to this DPA (including the Standard Contractual Clauses) will be subject to the exclusions and limitations of liability set forth in the Agreement, to the extent permitted by applicable Data Protection Laws. Any claims made against Fullstory under or in connection with this DPA (including, where applicable, the Standard Contractual Clauses) will be brought solely by Customer entity that is a party to the Agreement. In no event will any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.
15. US Data Protection Laws.
15.1 For purposes of the US Data Protection Laws , the definitions of: “Data Controller” includes “Business”; “Data Processor” includes “Service Provider”; “Data Subject” includes “Consumer”; “Personal Data” includes “Personal Information”; as defined under applicable US Data Protection Laws. Fullstory is a Service Provider and Customer is a Business.
15.2Fullstory, as a Service Provider, will not (a) Sell Customer Data (as the term is respectively defined in the CCPA), (b) share any Customer Data for cross-context behavioral advertising, without Customer consent; (c) merge Customer Data with other data, or modify or commercially exploit any Customer Data, without Customer consent; or (d) retain, use, or disclose Customer Data for any purposes other than for the specific purposes set forth in the Agreement and this DPA. Fullstory hereby certifies that it understands the restrictions and obligations set forth in this Section and will comply with them.
15.3 Information on the data processed by Fullstory under this DPA, including the subject-matter, duration, nature and purpose of the processing, type of personal data and categories of Data Subjects and the retention period(s) for the Customer Data are set out in Exhibit A.
15.4 Fullstory will notify and obtain approval from Customer prior to adopting any new type of processing in respect of Customer Data (including the use of new technology, security measures or processes).
15.5 Fullstory will retain the Customer Data in accordance with any retention period specified by the Customer and keep a written record of such retention period, which it will provide to the Customer on request.
15.6 Fullstory shall immediately notify (and in any event within five (5) days) Customer in the event it can no longer comply with Data Protection Laws in respect of processing Customer Data.
16. Delivery of Notifications.
Fullstory will deliver any notifications related to this DPA to the Notification Email Address(es) or, at Fullstory’s discretion (including if Customer has not provided a Notification Email Address), by other direct communication. Customer is solely responsible for providing the Notification Email Address(es) and ensuring that any Notification Email Addresses are current and valid.
17. Relationship with the Agreement.
This DPA will remain in effect for as long as Fullstory carries out Customer Data Processing operations on behalf of Customer or until termination of the Agreement (and all Customer Data has been returned or deleted in accordance with Section 7 above).This DPA supersedes and replaces all prior representations, understandings, communications, and agreements by and between the parties in relation to Customer Data and the matters set forth in this DPA. In the event of any conflict or inconsistency between this DPA and the Agreement, the provisions of the following documents (in order of precedence) will prevail: (a) the Standard Contractual Clauses; then (b) this DPA; and then (c) the Agreement. For matters not addressed under this DPA, the terms of the Agreement apply.
[Signatures Appear on Following Page]
This Data Processing Agreement is executed by duly authorized representatives of the parties to be effective as of the last date written below.
On behalf of Fullstory:
Signature:______________________________
Printed Name: ______________________________
Title:______________________________
Date Signed:______________________________
On behalf of Customer:
Signature:______________________________
Printed Name: ______________________________
Title:______________________________
Date Signed:______________________________
EXHIBIT A
Details of Data Processing
Subject matter: The subject matter of the data Processing under this DPA is the Customer Data.
Duration of Processing: Fullstory will Process Customer Data for the term of the Agreement plus the period until Fullstory deletes all Customer Data Processed on behalf of Customer in accordance with the Agreement.
Purpose: The purpose of the data Processing under this DPA is the provision of the Services initiated by Customer from time to time.
Nature of Processing: Session replays and such other Services as described in the Agreement and initiated by Customer from time to time.
Categories of Data Subjects: The Customer Data transferred concern individuals about whom Customer Data is provided to Fullstory via the Services by (or at the direction of) Customer or Customer’s end users. This may include, but is not limited to, Customer Data relating to Customer’s customers and employees.
Types of Personal Data: Customer may upload, submit, or otherwise provide certain Customer Data to the Services, the extent of which is typically determined and controlled by Customer in its sole discretion and may include name, personal addresses, telephone numbers, email, and IP addresses.
Sensitive Data Transferred: None.
Frequency of the Transfer: The frequency of the transfer will be on a continuous basis.
Transfers to Sub-processors: The subject matter and nature of the Processing by Sub-processors are as specified in Exhibit B of the DPA. The duration of the Processing carried out by the Sub-processors will be until thirty (30) days following the termination or expiration of the Agreement unless otherwise agreed.
Competent Supervisory Authority: Customer’s competent Supervisory Authority will be determined in accordance with the applicable Data Protection Laws.
Retention: Customer Data is retained for the duration of the Agreement or as specified in the Agreement.
EXHIBIT B
ENTITY NAME | PURPOSE OF PROCESSING | PROCESSED DATA | LOCATION | TRANSFER MECHANISM |
Google LLC | Data storage and processing, security monitoring | Customer data and Customer End-User’s data | United States; Germany | SCCs; Not Applicable |
Fastly, Inc. (Signal Sciences Corporation) | Real-time threat detection and prevention; web application Firewall | Customer data and Customer End-User’s data | United States | SCCs |
Salesforce | Customer relationship management solution platform | Customer data | United States | SCCs |
Zendesk | Customer service platform that supports customer interactions e.g. via email
| Customer data and Customer End-Users data, as is provided by the individual that reached out to Fullstory, such as name, email address, phone number
| United States | SCCs |
Marketo | Cloud-based Email and Marketing Services tool | Customer data | United States | SCCs |
OpenAI (optional) | Support various Generative AI features within Fullstory | Customer data and Customer End-User’s data | United States | SCCs |
EXHIBIT C
Standard Contractual Clauses
SECTION I
Clause 1
Purpose and scope
(a) 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) for the transfer of personal data to a third country.
(b) The Parties:
(i) 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
(ii) 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’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) 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.
(b) 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
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) 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);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e)
(vii) Clause 16(e);
(viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18. 18
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679
(c) 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
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party
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
(a) 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.
(b) 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
(a) 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.
(b) 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.
(c) 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.
(d) 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 (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:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) 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;
(iii) 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
(iv) 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.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
MODULE THREE: Transfer processor to processor
8.1 Instructions
(a) The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
(b) The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
(c) The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller
(d) The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.
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 controller, as communicated to the data importer by the data exporter, or 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 personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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.
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 rectify or erase 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 controller 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
(a) 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, they 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 subject. 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 or the controller. 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.
(b) The data importer shall grant access to the 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.
(c) 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, without undue delay, the data exporter and, where appropriate and feasible, the controller 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 data breach, including 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.
(d) 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 its controller so that the latter may in turn 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 set out 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 controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (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:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
(iii) 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
(iv) 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.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.
(b) 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 controller.
(c) The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
(d) The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
(e) Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
(f) 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.
(g) 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
(a) The data importer has the data exporter’s general authorization 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 thirty (30) 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.
(b) 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. 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.
(c) 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.
(d) 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 fulfill its obligations under that contract.
(e) 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.
MODULE THREE: Transfer processor to processor
(a) The data importer has the controller’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least thirty (30) days in advance, thereby giving the controller 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 controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), 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. 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.
(c) The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. 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.
(d) 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 fulfill its obligations under that contract.
(e) 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.
Clause 10
Data subject rights
MODULE TWO: Transfer controller to processor
(a) 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.
(b) 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.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
MODULE THREE: Transfer processor to processor
(a) The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
(b) The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. 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.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.
Clause 11
Redress
(a) 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
MODULE THREE: Transfer processor to processor
(b) 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.
(c) 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:
(i) 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;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) 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.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) 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
MODULE THREE: Transfer processor to processor
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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
MODULE THREE: Transfer processor to processor
(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority. [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority. [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) 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
MODULE THREE: Transfer processor to processor
(a) 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.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) 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;
(ii) 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;
(iii) 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.
(c) 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.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) 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). [For Module Three: The data exporter shall forward the notification to the controller.]
(f) 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 organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three:, if appropriate in consultation with the controller]. 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 [for Module Three: the controller or] 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.
Clause 15
Obligations of the data importer in case of access by public authorities
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
15.1 Notification
(a) 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:
(i) 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
(ii) 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.
[For Module Three: The data exporter shall forward the notification to the controller.]
(b) 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.
(c) 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.). [For Module Three: The data exporter shall forward the information to the controller.]
(d) 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.
(e) 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 minimization
(a) 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).
(b) 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. [For Module Three: The data exporter shall make the assessment available to the controller.]
(c) 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
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) 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).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) 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;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) 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.
(d) [For Modules 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.] [For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] 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.
(e) 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
MODULE THREE: Transfer processor to processor
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland (specify Member State).
Clause 18
Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Ireland (specify Member State).
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
Annex I
A. LIST OF PARTIES
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
Name: Fullstory's customer under separate contract for Services.
Address: See Agreement
Contact person’s name, position and contact details: See Agreement.
Activities relevant to the data transferred under these Clauses: Fullstory performs services for customer per the terms of its agreement with the customer. The subject matter, nature, purpose and duration of the Services and the processing are set out in the Agreement.
Signature: See Agreement
Date: See Agreement
Role (controller/processor): Controller.
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
Name: Fullstory, Inc.
Address: 1745 Peachtree ST NE, STE N, Atlanta, GA 30309
Contact person’s name, position and contact details: See Agreement.
Activities relevant to the data transferred under these Clauses: The activities specified in Exhibit A of this DPA.
Signature: See Agreement
Date: See Agreement
Role (controller/processor): Processor.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
The categories of data subjects whose personal data is transferred are specified in Exhibit A of the DPA.
Categories of personal data transferred
The categories of personal data transferred are specified in Exhibit A of the DPA.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
No sensitive data will be transferred from the data exporter to the data importer.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
The frequency of the transfer will be on a continuous basis.
Nature of the processing
The nature of the processing is specified in Exhibit A of the DPA.
Purpose(s) of the data transfer and further processing
The purposes of the data transfer and further processing are to provide the Services in accordance with the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The period for which the personal data will be retained is specified in Exhibit A of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The subject matter and nature of the processing by sub-processors are specified in Exhibit A of the DPA. The duration of the processing carried out by sub-processors will be until thirty (30) days following the termination or expiration of the Agreement.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
Data Protection Commission (DPC), the Irish Supervisory Authority.
Annex II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
The technical and organisational security measures implemented by the data importer are described in Section 5.1 of the DPA.