IMI Data Search, Inc.
Revised: August 7, 2023)
(Changes 3.18, 3.38, 9, 10, 11)
TERMS AND CONDITIONS
IMI DATA SEARCH, INC. CLIENT AGREEMENT
IMI Data Search, Inc. and Client agree to the following:
1 Definitions
1.1 "IMI" means IMI Data Search, Inc., a California corporation, on behalf of itself, its officers and employees.
1.2 "Service" means business services and information products provided by or through IMI, which include business and personal credit reports, Anti-Money Laundering (AML), Counter Financing of Terrorism (CFT), and Know Your Customer (KYC) due diligence reports, background investigations and employment screening services, internationally and within the United States.
1.3 "Client" means the organization obtaining the Service.
1.4 "Reseller" means a Client providing the Service to an End User.
1.5 "Applicable Law" means any applicable foreign, federal, state, or other laws, rules, regulations, or interpretations by relevant governmental regulatory organizations.
1.6 "International" means any country or territory outside the United States and its protectorates.
1.7 "Confidential Information" means any and all proprietary or secret data; sales or pricing information relating to either party, its operations, employees, products, or services; and all information relating to any customer, potential customer, agent, and/or independent sales outlet.
1.8 "End User" means the organization that is the end user of the data.
1.9 "EU" means the European Union.
1.10 "EEA" means the European Economic Area.
1.11 "EFTA" means the European Free Trade Association.
1.12 "UK" means the United Kingdom.
1.13 "Data Controller" means a company who, alone or jointly, determines the purposes and the means of processing personal data.
2 IMI Obligations
2.1 The Service will provide Client with information gathered for the purpose requested, by IMI, furnished to IMI by third-party agents, or a combination thereof.
2.2 IMI uses commercially reasonable efforts to comply with all Applicable Laws, regulations, rules, and standards of all governing jurisdictions and performs Services generally in a workmanlike manner according to industry standards. Although reasonable effort is made by IMI and its agents to ensure accuracy, IMI does not act as a guarantor of the accuracy or completeness of the information.
2.3 If IMI discovers any errors or omissions in research, IMI will send a supplement report updating and correcting the original report.
2.4 When Service is Used for a Subject who is a Resident of or the Location of the Background Screening is the EU, EEA, UK, and Switzerland
2.4.1 IMI Data Search, Inc. will function as Data Controller in accordance with the EU’s General Data Protection Regulation, UK’s Data Protection Act, and Switzerland’s new Act on Federal Data Protection (nFADP).
3 Client Obligations and Understanding
3.1 Client will comply with the terms set forth in this agreement.
3.2 Client will pay for the Service as set forth in this agreement's Payments and Pricing section. Prior to requesting Service, Client will carefully review each service’s respective "Services" link and order form (which may vary by country). Client understands that this information may not always apply to its specific request when a response or result is obtained.
3.3 When Service Used for an FCRA purpose and Subject is a Resident of the United States, or the Point of Impact Decision will be Made in the United States
3.3.1 Prior to requesting Service for a report on a consumer, Client, or their End User will inform the subject in writing that either a consumer report or an investigative consumer report will be acquired and will obtain the subject's authorization in writing.
3.3.2 Prior to requesting Service for a report on a consumer, Client or their End User will provide the subject a written summary of their rights (including the right for additional disclosures regarding the nature and scope of the investigation) in accordance with Applicable Law. Additionally, Client or their End User will provide Vermont consumers a copy of Section 2480e of the Vermont Fair Credit Reporting Statute.
3.3.3 User agrees to comply with and provide all statutorily required notices in Section 615 of the Fair Credit Reporting Act.
3.4 Prior to requesting Service for a report on a consumer, Client or their End User will make a visual inspection of the consumer’s identification document and confirm the document visually matches the consumer’s information.
3.5 Client and End User agree that each consumer report will only be used for a one-time use.
3.6 When Requesting International Service or When the Subject is Currently a Resident of an International Country
3.6.1 Prior to requesting Service, Client or End User will inform and obtain consent from the consumer that their personal data may be used to enable IMI, Client, Reseller, End User, or their agents to complete Service and that their personal information may be transferred to other countries, including countries that have inadequate privacy laws according to the European Commission, data protection commissions or government authorities.
3.7 Client and their End Users will only use the information being ordered for the Reason for Request indicated in the order and will not use it for any other purpose without the prior consent of IMI. The Service is not provided or intended to be used for investigations or due diligence investigations of consumers without Client having and warranting that it has in its possession an informed consent signed by the subject agreeing to research being done to support the order(s) placed by Client. The Service is not to be used to gather evidence for legal actions.
3.8 Client and their End Users will comply with all Federal, State, Local and International laws and regulations applicable to the use of the Service, including, but not limited to, U.S. economic sanctions regulations and Title VII of the Civil Rights Act of 1964, Fair Credit Reporting Act disclosure and authorization requirements, adverse action provisions and international data transfer directives. Client accepts full responsibility for complying with all laws and for using the information products it receives from IMI in a legally acceptable fashion that is not in violation of any Applicable Laws including but not limited to, International, Federal, or State Equal Employment Opportunity laws or regulations. Client agrees to comply with and provide all statutorily required notices when using information products. Client accepts full responsibility for any and all consequences of the use or dissemination of those products.
3.9 Client understands that some Services as outlined in the Services Info section for the Service will require additional Addendums to be signed before IMI can provide information to Client.
3.10 Reseller understands that some Services may only be available to End User clients. End User understands that data may not be passed from the End User to any third party.
3.11 As a condition of entering into this agreement, Client certifies that it has reasonable procedures designed to comply with all applicable International, local, state, and federal laws.
3.12 To ensure that IMI data is safeguarded and only provided to companies that have been appropriately verified and credentialed, Reseller will complete due diligence on any End User requesting Service prior to being provided access to the Service. Reseller will have an agreement with End User which will clearly outline the obligations of the End User as listed in this agreement.
3.13 Client understands that background screening may be conducted through the services of a third-party independent contractor. Client understands that criminal and other background records are maintained in various ways. Client understands there are differences in foreign laws, language, and the manner in which different records are maintained and reported. IMI is not an insurer or a guarantor of the accuracy of the information reported.
3.14 When Service Used for Employment Purposes Where the Employer is Located in the United States, the Job is in the United States, or When the Subject Currently Resides in the United States
3.14.1 If the Service the Client obtains from IMI are to be used for an employment purpose, Client certifies that prior to obtaining or causing a consumer report or an investigative consumer report to be obtained, a clear and conspicuous disclosure, in a document consisting solely of the disclosure, will be made in writing to the consumer explaining that a consumer report or investigative consumer report may be obtained for employment purposes. This disclosure will satisfy all requirements identified in Section 606(a)(1) of the FCRA. Any applicable state or local law disclosures will be made separately from the FCRA consumer report disclosure or the FCRA investigative consumer report disclosure. The consumer will have authorized, in writing, the obtaining of the report by End User.
3.14.2 If the consumer is denied employment, or other adverse employment action is taken based in whole or in part on the information products provided by IMI, End User will provide to the consumer: (1) a copy of the report; and (2) a description, in writing, of the rights of the consumer entitled: "Summary of Your Rights Under the Fair Credit Reporting Act." After the appropriate waiting period, End User will issue to the consumer notice of the adverse action taken, including the statutorily required notices identified in Section 615 of the Fair Credit Reporting Act.
3.15 Investigative Consumer Reports
3.15.1 In addition to the disclosure requirements identified in 3.14, if the consumer makes a written request within a reasonable amount of time, Client will provide: (1) information about whether an investigative consumer report has been requested; (2) if an investigative consumer report has been requested, written disclosure of the nature and scope of the investigation requested; and (3) IMI's contact information, including complete address and US toll-free telephone number. This information will be provided to the consumer no later than five (5) days after the request for the disclosure was received from the consumer or the report was first requested, whichever is the later.
3.16 Consumer Reports
3.16.1 In addition to the requirements identified above, Client and End User have read and understood their obligations under the FCRA and the penalties for requesting consumer reports under false pretenses. Client understands that unauthorized access to consumer reports may subject them to civil and criminal liability under the FCRA, punishable by fines and imprisonment.
3.17 US National/Multi-State Database Searches
3.17.1 IMI recommends that Client screen its applicants or employees at the county courthouse or online system, federal, and multi-state/nationwide database levels. Client understands that if it chooses not to conduct searches at these levels, IMI cannot be held responsible for any existing records that are not included in the Client's coverage requested. Client further understands that the multi-state/nationwide database report will only be offered in conjunction with a county-level verification of any records found. Client will bear any additional costs associated with this verification.
3.18 Client understands that credit reports may be obtained from a third party credit bureau and agrees that information supplied to a credit bureau may be added to the subject’s credit report in the normal course of business which may be released by the credit bureau to its customers.
3.19 When Service is Used for a Subject who is a Natural Person and Resident of, or the Location of the Background Screening is in the EU, EEA, UK, and Switzerland
3.19.1 Prior to requesting EU, EEA, UK or Switzerland Background Screening, Client or their End User will notify the subject of the purpose in collecting the data, the different categories of background screening to be completed, that a third party including IMI Data Search, Inc. and its representative Owens Europe Screening Ltd. may be used to compile information about them, provide the subject with a link to the IMI Data Search, Inc. and Owens Europe Screening Ltd. privacy policies, the categories of persons to whom the data may be disclosed, the consequences of not authorizing the background screening, the right to withdraw consent, and the right to access a copy of their report and have inaccurate information corrected.
3.19.2 Prior to requesting EU, EEA, UK, or Switzerland Background Screening, Client or their End User will obtain a freely given, specific, explicit, informed, and unambiguous consent from the subject.
3.19.3 Client and End Users will have a physical and logical security policy and a security assurance plan. This policy and plan should be compliant with section 5 of this agreement and shall be made available to IMI Data Search, Inc. or Owens Europe Screening Ltd. upon request.
3.19.4 Client and End Users will notify IMI immediately if the subject withdraws consent, requests rectification of inaccurate personal data, or requests data erasure.
3.19.5 If the subject wants to exercise the right of access or if the subject wants to contact IMI directly about any of their rights, Client and End User will direct the subject to the IMI privacy notice, which will list the current point of contact.
3.19.6 Client and IMI agree that accepting the terms and conditions represents full execution by both parties of the Commission Implementing Decision on 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. (See: Standard contractual clauses for international transfers.) Appendix and Annexes appear at the end of the agreement.
3.20 US Driver's License Verification and Driving Records
3.20.1 Client hereby certifies US Driver's License Verification and Driving Records will only be ordered in strict compliance with the Driver Privacy Protection Act ("DPPA", at 18 U.S.C. § 2721 et seq.) and any related state laws. Client further certifies that no US Driver's License Verification and Driving Records will be ordered without first obtaining the written consent of the consumer to obtain driving records, evidence of which will be transmitted to IMI in the form of the consumer's signed authorization form. Client also certifies that it will use this information only in the normal course of business to obtain lawful information relating to the holder of a commercial driver's license or to verify information provided by an applicant or employee. Client will not transmit any data contained in the resulting US Driver's License Verification and Driving Records via the public Internet, electronic mail, or any other unsecured means.
3.21 Arrest Warrants
3.21.1 In the course of completing background checks, IMI may uncover active arrest warrants that are outstanding against the subject. In these cases, IMI may be contacted by the law enforcement agency seeking the subject. Client understands that IMI will furnish law enforcement any information contained within the subject's file to assist in the subject's apprehension. Additionally, IMI may contact Client, and Client agrees to release to IMI any and all information Client may have which will further the apprehension of the wanted individual.
3.22 Client agrees and understands that Service and amount of information may vary greatly due to numerous variables, some of which may be outside IMI's control (e.g. subject's unique history, available data, Applicable Laws, local search customs, source repository policies, organization's lack of cooperation, etc.). Information is obtained from IMI, third-party agents/sources, in-country agents/sources, or a combination thereof.
3.23 Client agrees and understands that though name variations may be common in a particular country and some repositories or agents may search for name variations, no consistency or guarantee that variations will be searched is available without the commitment of an additional order for each name. Searches are per jurisdiction unless otherwise indicated.
3.24 Client agrees and understands that many courts and some police agencies do not issue documents verifying a non-record. If a document is available and is required by Client, additional fees and delays may apply.
3.25 Client agrees and understands that there are fees for Service provided by IMI. Furthermore, there may be out-of-pocket costs that must be advanced by IMI, including, but not limited to, court fees and International agent fees.
3.26 Client agrees and understands that published delivery times vary by product and country and are an estimate based on the experience of previous orders – they are not a guarantee. If a product lists a delivery time range, the order is considered to be late on the day after the last date in the range, not the first date. Orders are subject to delays depending upon source(s) involved and other factors outside IMI's control, which may include, but is not limited to, extended holidays, civil strife, natural disasters, records not readily accessible, slow responses from courts in obtaining clarifications and lengthy court procedures in acquiring case files for further research after a name match search is performed (e.g. eliminating false positives, researching potential court errors or contradictory information from multiple sources, etc.).
3.27 Client agrees and understands that status updates and estimated completion times may not be practical or observed in other countries and, if obtained, may lack the level of specificity commonly expected. IMI will track and follow orders and make its best efforts to obtain detailed status updates on Client reports where possible.
3.28 Client agrees and understands that IMI is not responsible for the internal management of its agent's, its agent's employees, its agent's vendors and/or its agent's data sources.
3.29 Client and End Users understand IMI does not provide legal advice in the provision of its Service, and Client acknowledges it is not obtaining from IMI nor relying on IMI for legal advice of any kind. Client will base its decisions on its own guidelines, policies and procedures. Any consultation and sample forms that may be provided by IMI will be provided for informational purposes only and IMI will not be considered to be providing legal advice. IMI advises that Client consult experienced counsel to ensure compliant procurement and use of IMI reports in connection with its particular credit, due diligence or screening program.
3.30 Client and End Users understand they are subject to periodic audits and will provide reasonable evidence regarding their compliance with their obligations under this agreement.
3.31 Client agrees that IMI has provided Client with a copy of the Notice to Users of Consumer Reports: Obligations of Users. Resellers agree to provide a copy of the Notice to Users of Consumers Reports: Obligations of Users to End Users prior to using Service.
3.32 Client recognizes that information is obtained from various third-party sources. The information supplied to IMI by its agents is "as is" and cannot be guaranteed to be error-free. In requesting any Services, Client accepts that information/content cannot be guaranteed as accurate in that IMI, its agents, or associates have no practical opportunity to audit or confirm all source data.
3.33 Client also understands that processing of court or police records, and other governmental or commercial searches vary based on local laws, regulations, and purpose. The information provided by agents to IMI may be reflective of country variances. The quality of information gathered in one country cannot be used as a measurement for information gathered in another country; record-keeping practices vary by country.
3.34 Client agrees and understands that IMI's agent identities are proprietary and not available for audit.
3.35 Client certifies it is not an individual or entity in Iran, Syria, Sudan, the Crimea region of Ukraine, Cuba, or North Korea. Client also certifies that it is not otherwise designated on the Specially Designated Nationals and Blocked Persons List (SDN List) or owned or controlled by 50 percent or more, in the aggregate, by an individual or entity on the SDN List.
3.36 Client certifies that this information will not be used to conduct a transaction with an individual or entity on the SDN List or within a sanctioned territory that would be prohibited for a U.S. individual or entity pursuant to the U.S. economic sanctions regulations.
3.37 Prior to requesting Service for a report on a consumer, Client or their End User will obtain the subject’s consent to send legal notices electronically.
3.38 United States Business Credit Reports
3.38.1 Restrictions on Use of United States Business Credit Reports: Client certifies to Trans Union and Reseller that the United States Business Credit Report Services: (i) will be used solely in connection with a present or prospective credit or financial transaction with the business entity inquired upon or for other legitimate commercial purposes, including business research; (ii) will not be used as a factor in establishing an individual's eligibility for (a) credit or insurance to be used primarily for personal, family or household purposes, or (b) employment; (iii) will be used in compliance with all applicable laws, regulations and ordinances, and all special use restrictions set forth in the agreement or adopted by Trans Union and/or IMI hereafter; and (iv) will be maintained in confidence and disclosed only to persons whose duties reasonably relate to the business purposes for which the information was requested.
4 Payments and Pricing
4.1 Client is responsible for each order placed on its account.
4.2 Client will be charged for all Services at the rates set forth at the time each order is placed. However, IMI reserves the right to deny continuation of any order if unanticipated or unreasonable price fluctuations occur (e.g. agent pricing, currency fluctuations, etc.) and reserves the right to cancel any order (with an appropriate refund) if a commensurate source is not obtainable.
4.3 Pricing is subject to change without notice.
4.4 Client will be responsible for charges resulting from Client's errors in inputting data, entering duplicate orders, and canceling orders once processing has commenced.
4.5 Client understands that database-retrieved reports may not be canceled. Cancellations on freshly prepared reports must be received in writing within two (2) hours of receipt of the original order and must be approved by IMI.
4.6 Due to the customized nature of IMI's business, Client agrees that payments made by charge/credit/debit card can be debited at the time the Client's order is placed and not necessarily when delivery is made.
4.7 Non-payments, charge/credit/debit card chargebacks or refunds are not available and not acceptable for reasons including, but not limited to, report content, possible lateness, etc.
4.8 Reports over one working day late will be charged at the next slower delivery time if one is offered unless otherwise indicated in the services respective About information page.
4.9 Payment information collected from Client will be shared with financial institutions in order to process your payment.
4.10 To the extent that Client determines that it is exempt from any sales and use tax(es), Client shall provide IMI with the applicable and executed exemption certificate.
5 Data Security
5.1 Client and End User are responsible for the creation, confidentiality, and security of their passwords. Client will change passwords at least every ninety (90) days or sooner if Client suspects an unauthorized person has learned the password. Client agrees to immediately notify IMI of any unauthorized use of Client's account or password.
5.2 Client will ensure that only authorized staff can order and access IMI Services. Client will be responsible for all uses of its account, whether or not authorized by Client. Client will take necessary measures to prevent unauthorized ordering or access to Services including limiting the knowledge of account numbers, user IDs, and passwords. Client will notify IMI if a user is no longer responsible for ordering or accessing IMI Services.
5.3 Client and End User agrees to monitor compliance with the obligations of this section, and immediately notify IMI if Client or End User suspects or knows of any unauthorized access or attempt to access the Services.
5.4 Client agrees to have reasonable procedures for the fair and equitable use of background information and to secure the confidentiality of private information. Client agrees to take precautionary measures to protect the security and dissemination of all IMI Service data, consumer report or investigative consumer report information.
5.5 Client and End Users will ensure that authorized users of its account do not order Service for personal reasons.
5.6 Client and End Users ensure that all devices used to order or access Services are placed in a secure location and accessible only by authorized staff, and that devices are secured when not in use through means such as screen locks, shutting power controls off, or other commercially reasonable security procedures.
5.7 Client and End User agrees when sending, transferring, or shipping IMI Service data, Client will encrypt the data using minimum standards of Advanced Encryption Standard (AES 128 bits and higher) or RSA (1024 bits and higher) encryption algorithms.
5.8 Client and End User will not allow IMI Service data to be displayed via the internet unless utilizing, at a minimum, a three-tier architecture configured in accordance with industry best practices.
5.9 Client and End Users will encrypt IMI information when not in use, store printed information in a secured locked container when not in use, and utilize document disposal and destruction methods that render all data unintelligible in accordance with the Federal Trade Commission, or in accordance with stronger applicable local, state, or International law or banking/credit union regulators. Client and End Users will take reasonable measures to protect against unauthorized access or use of the information in connection with its disposal and destruction.
5.10 Client and End Users will not ship hardware or software between locations or to third parties without deleting all security information and personally identifiable consumer information.
5.11 Client and End Users will not use non-company owned assets including, but not limited to, personal computer hard-drives or portable and/or removable data storage equipments or media (e.g. laptops, zip drives, tapes, disks, CDs, DVDs, etc.) to store information obtained from IMI.
5.12 Client and End Users will use commercially reasonable efforts to protect IMI Service data when stored on systems, subject to the following requirements; (i) IMI Service data must be protected by multiple layers of network security including, but not limited to, firewalls, routers and intrusion detection devices; (ii) secure access (both physical and network) to systems storing IMI Service data, must include authentication and passwords that are changed at least every ninety (90) days; and (iii) all servers must be kept current and patched on a timely basis with appropriate security-specific systems and underlying subsystems patched, as they are available.
5.13 Client and End User will use commercially reasonable efforts to protect their connection with dedicated, industry-recognized firewalls configured and managed to adhere to industry-accepted best practices. Client and End User will use commercially reasonable efforts to route communications from End User’s or Client’s internal services to external systems through firewalls configured for network address translation (NAT).
5.14 Client and End User will use commercially reasonable efforts to establish procedures and login mechanisms for systems and networks that will allow tracking and analysis in the event there is a compromise and maintain an audit trail history for at least three (3) months for review by IMI.
5.15 Client and End Users will protect access to IMI Service data from unauthorized personnel, including employees, subcontractors, and freelancers hired by the Client or End User.
6 Term of Agreement
6.1 This agreement will be in full force and effect during periods of time that IMI is providing Service for Client. Client agrees that if it is found to be in violation of any specifications of this agreement, IMI has the right to terminate Client's access to Service.
7 Modifications to Agreement
7.1 IMI reserves the right to modify these Terms and Conditions at any time and any modification will be effective immediately upon posting of the modified agreement to the website. Client agrees that they are entirely responsible for reviewing these changes when accessing this website or its products, Service, and information, and understand that IMI Terms and Conditions may be updated from time to time with the last revision date being clearly shown at the top of the agreement. Continued use of any of IMI's Service after changes are made constitutes acceptance of this agreement as modified by the published changes.
8 Rights to Service
8.1 The Service is proprietary to IMI, and all rights to the Service are proprietary to and reserved by IMI.
9 Warranty and Warranty Disclaimers
9.1 Client acknowledges and agrees that, except as expressly provided in this section, IMI and its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively, make no representation or warranty whatsoever, either express or implied (including, but not limited to, implied warranties of merchantability or fitness for a particular purpose and implied warranties arising from the course of dealing or a course of performance) with respect to the accuracy, errors, omissions, currentness, validity, completeness, uninterrupted availability or suitability for Client's needs, of any Service provided under this agreement and IMI hereby expressly disclaims all representations and warranties.
9.2 The representations, warranties, covenants, and agreements contained in this agreement are for the sole benefit of the parties hereto, and their heirs, executors, administrators, legal representatives, successors, and assigns, and they will not be construed as conferring any rights on any other persons.
9.3 Client agrees and understands that satisfaction of its obligations under this agreement and all Applicable Law is the sole responsibility of Client, and that the obligations of Client are in no way conditioned or contingent upon the performance of IMI or any business or consumer reporting agency, End User, consumer or other third party.
10 Limitation of Liability
10.1 Client and their End Users release IMI and its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively, from any and all liability for damages of whatever kind, including indirect or consequential damages (including loss of profits, income, savings, goodwill, use or data).
10.2 Client and their End Users will not hold IMI, nor any of its suppliers, agents or subagents responsible for any compensation, reimbursement, or damages arising in connection with: (a) Client’s inability to access Service, including, but not limited to (i) termination of this agreement, (ii) IMI discontinuation of a Service offering, or (iii) system failures or other interruptions; (b) work performed, including, but not limited to, (i) delivery or fulfillment of Services (ii) Client’s or End User’s business decision made subsequent to receipt of data or lack thereof, (iii) overdue reports; or (c) any unauthorized access to, alteration of, or the deletion, destruction, damage or loss of data.
10.3 Client further agrees that the information will not be used as evidence or as a basis for any legal action.
10.4 If, notwithstanding the warranty disclaimer and limitation of liability, liability can be imposed on IMI and its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively, then Client agrees that the aggregate liability for any and all losses or injuries to the Client or their customer in connection with anything to be done or furnished under this agreement, regardless of the nature of the legal or equitable right claimed to have been violated, shall never exceed the amount paid to IMI for the affected Services and client covenants and IMI promotes that it will not sue IMI or its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively, for an amount greater than such sum and that it will not seek punitive damages in any suit against IMI and its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively.
11 Indemnification
11.1 Client and their End Users will indemnify, defend and hold harmless IMI and its suppliers, agents, contractors, officials, representatives, or assigned agencies, including officers, employees, or related personnel both individually and collectively from and against any and all claims, suits, proceedings, damages, costs, expenses (including without limitation, reasonable attorneys' fees and court costs) brought or suffered by any third party arising or resulting from, or otherwise in connection with any breach by Client of any of its representations, warranties or agreements in this agreement or its negligence or willful misconduct.
12 Force Majeure
12.1 IMI and its agents will not be liable for any delay or failure to perform any obligation under this agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes, or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.
13 Governing Law and Dispute Resolution
13.1 This agreement of Client's use of Service will be governed solely by the laws of the State of California, USA, and construed in accordance with the laws of the State of California, without effect to conflict of law principles.
13.2 In the event of any dispute between the parties, if the parties are unable to resolve the dispute after holding good faith and confidential discussions, then the dispute will be submitted to binding arbitration conducted in Thousand Oaks, Ventura County, California, USA, under the American Arbitration Association.
13.3 Notwithstanding the foregoing, each party will be entitled to seek immediate injunctive relief to protect its Confidential Information.
14 Assignment, Sub-License, or Resell
14.1 Client will neither transfer nor assign this agreement, in whole or in part, without IMI's prior written consent, which will not unreasonably be withheld.
15 Miscellaneous
15.1 The parties agree that the relationship of the parties created by this agreement is that of an independent contractor and not that of employer/employee, principal/agent, partnership, joint venture, or representative of the other. Except as authorized hereunder, neither party will represent to third parties that it is the employer, employee, principal, agent, joint venture or partner with, or representative of the other party.
15.2 Neither party will reveal, publish or otherwise disclose any Confidential Information to any third party without the prior written consent of the other party. The parties agree to keep this information confidential at all times during the term of this agreement and continuing for five years after receipt of any Confidential Information. Notwithstanding anything to the contrary within this agreement, in no event will IMI be required to destroy, erase or return any consumer reports or applicant data related thereto in IMI's files, all of which IMI will maintain as a consumer reporting agency in strict accordance with all applicable federal, state and local laws.
15.3 If any provision of this agreement is held to be invalid or unenforceable under Applicable Law in any jurisdiction, the validity or enforceability of the remaining provisions within the agreement will be unaffected as to the jurisdiction and the holding will not affect the validity or enforceability of any provision of this agreement in any other jurisdiction.
15.4 To the extent that any provision of this agreement is held to be invalid or unenforceable because it is overbroad, that provision will not be void but rather be limited only to the extent required by Applicable Law and enforced as so limited.
15.5 This agreement supersedes and replaces all prior agreements, commitments, representations, and understandings, oral or written, between IMI and Client.
16 Notices
16.1 To Client. IMI may provide any notice to you under this agreement by: (i) posting a notice on this site; or (ii) sending a message to the email address associated with your account. Notices IMI provides by posting on this site will be effective upon posting. Notices IMI provides by email will be effective when the email is sent. Client is responsible to keep their email address current with the IMI eCommerce system. Client will be deemed to have received any email sent to the email address associated with their account when the email is sent, whether or not Client actually received the email.
16.2 To IMI. To give IMI notice under this agreement, Client must contact IMI by personal delivery, overnight courier or registered or certified mail to IMI Data Search, Inc., 365 E. Avenida De Los Arboles, Ste.B, California 91360 USA. IMI may update the address for notices to IMI by posting a notice on this site.
16.3 Language. All communications and notices to be made or given under this agreement must be in the English language.
ANNEX
STANDARD CONTRACTUAL CLAUSES- MODULE ONE & FOUR
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)[1] 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.
(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 - Not Applicable
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 ONE: Transfer controller to controller
8.1 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. It may only process the personal data for another purpose:
(i) where it has obtained the data subject’s prior consent;
(ii) where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iii) where necessary in order to protect the vital interests of the data subject or of another natural person.
8.2 Transparency
(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:
(i) of its identity and contact details;
(ii) of the categories of personal data processed;
(iii) of the right to obtain a copy of these Clauses;
(iv) where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
(b) Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
(c) On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties 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.
(d) Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimisation
(a) Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
(b) If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
(c) The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation[2] of the data and all back-ups at the end of the retention period.
8.5 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 personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (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.
(b) The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(c) The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(d) 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 personal data breach, including measures to mitigate its possible adverse effects.
(e) In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.
(f) In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.
(g) The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.
8.6 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 or offences (hereinafter “sensitive data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.
8.7 Onward transfers
The data importer shall not disclose the personal data to a third party located outside the European Union[3] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:
(i) it 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 with respect to the processing in question;
(iii) the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;
(iv) it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;
(v) it is necessary in order to protect the vital interests of the data subject or of another natural person; or
(vi) where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
(a) Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
(b) The data importer shall make such documentation available to the competent supervisory authority on request.
MODULE FOUR: Transfer processor to controller
8.1 Instructions
(a) The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.
(b) The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.
(c) The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities.
(d) After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies.
8.2 Security of processing
(a) The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during transmission, and protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (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 of the personal data[7], the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.
(b) The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.
(c) The data exporter shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
8.3 Documentation and Compliance
(a) The Parties shall be able to demonstrate compliance with these Clauses.
(b) The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.
Clause 9 - Not Applicable
Clause 10
Data subject rights
MODULE ONE: Transfer controller to controller
(a) The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request.[10] The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.
(b) In particular, upon request by the data subject the data importer shall, free of charge :
(i) provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);
(ii) rectify inaccurate or incomplete data concerning the data subject;
(iii) erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.
(c) Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.
(d) The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter “automated decision”), which would produce legal effects concerning the data subject or similarly significantly affect him / her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:
(i) inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
(ii) implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.
(e) Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.
(f) The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.
(g) If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.
MODULE FOUR: Transfer processor to controller
The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679.
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.
[OPTION: The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body[11] at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.]
MODULE ONE: Transfer controller to controller
(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 ONE: Transfer controller to controller
MODULE FOUR: Transfer processor to controller
(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) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.
(c) 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.
(d) The Parties agree that if one Party is held liable under paragraph (c), 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.
(e) The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
Clause 13
Supervision
MODULE ONE: Transfer controller to controller
(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 ONE: Transfer controller to controller
MODULE FOUR: Transfer processor to controller (where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)
(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[12];
(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 fulfill 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 [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 ONE: Transfer controller to controller
MODULE FOUR: Transfer processor to controller (where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)
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.
(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 minimisation
(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.
(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 One: 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 ONE: Transfer controller to controller
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of The Republic of Ireland.
MODULE FOUR: Transfer processor to controller
These Clauses shall be governed by the law of a country allowing for third-party beneficiary rights. The Parties agree that this shall be the law of The Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
MODULE ONE: Transfer controller to controller
(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 The Republic of Ireland.
(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.
MODULE FOUR: Transfer processor to controller
Any dispute arising from these Clauses shall be resolved by the courts of The Republic of Ireland.
APPENDIX
EXPLANATORY NOTE:
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
ANNEX I
A. LIST OF PARTIES
Data exporter(s):
Name: CLIENT As specified in registration forms
Address: As specified in registration forms
Contact person’s name, position and contact details: As specified in registration forms
Activities relevant to the data transferred under these Clauses: IMI Data Search, Inc. provides Services in accordance with the Agreement. The Client may provide data relevant to a data subject.
Signature and date: The parties agree that execution of the Agreement by the Client on the IMI Data Search, Inc. website shall constitute execution of these Clauses by both parties.
Role: Processor or Controller, as applicable.
Name: IMI Data Search, Inc.
Address: 365 E. Avenida De Los Arboles, Ste. B, Thousand Oaks, California 91360, USA
Contact person’s name, position and contact details: Refer to online privacy notice, at https://www.imidatasearch.com/privay-policy.html for current contact.
Activities relevant to the data transferred under these Clauses: IMI Data Search, Inc. provides Services in accordance with the Agreement. IMI Data Search, Inc. may provide data gathered relevant to a data subject.
Signature and date: The parties agree that execution of the Agreement by the Client on the IMI Data Search, Inc. website shall constitute execution of these Clauses by both parties.
Role: Controller
Data importer(s):
Name: CLIENT As specified in registration forms
Address: As specified in registration forms
Contact person’s name, position and contact details: As specified in registration forms
Activities relevant to the data transferred under these Clauses: Client may receive Services in accordance with the Agreement.
Signature and date: The parties agree that execution of the Agreement by the Client on the IMI Data Search, Inc. website shall constitute execution of these Clauses by both parties.
Role: Processor or Controller, as applicable.
Name: IMI Data Search, Inc.
Address: 365 E. Avenida De Los Arboles, Ste. B, Thousand Oaks, California 91360, USA
Contact person’s name, position and contact details: Refer to online privacy notice, at http://www.imidatasearch.com/privacy-policy.html for current contact.
Activities relevant to the data transferred under these Clauses: IMI Data Search, Inc. may import data related to Service, including data from Client and Service results.
Signature and date: The parties agree that execution of the Agreement by the Client on the IMI Data Search, inc. website shall constitute execution of these Clauses by both parties.
Role: Controller
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Individuals subject to a background screening.
Categories of personal data transferred
Transferred Personal Data may include, for example:
● Personal details, including any information that identifies the data subject and their personal characteristics, including: name, address, contact details, age, date of birth, sex, and physical description.
● Employment details, including information relating to the employment of the data subject, including employment and career history, recruitment and termination details, attendance records, performance appraisals, training records, and security records.
● Financial details or credit reports, including information relating to the financial affairs of the data subject, including income, salary, assets and investments, payments, credit worthiness, loans, benefits, grants, insurance details, lien records, civil court, bankruptcy, insolvency, and pension information.
● Education and training details, including information which relates to the education and any professional training of the data subject, including academic records, qualifications, skills, training records, professional expertise, student and pupil records.
● Personal details issued as by a public authority, including passport details, national insurance numbers, identity card numbers, driving licence details, birth records and marriage records.
● Personal details relating to professional licenses or memberships.
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.
Transferred Personal Data may include special categories of personal data (as defined in the GDPR). This may include, for example: criminal records, personal data revealing racial or ethnic origin, or the processing of biometric data for the purpose of uniquely identifying a natural person.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Transfer shall only occur as needed for individual background screening requests.
Nature of the processing
Information will be processed relevant to the Service in accordance with the Agreement.
Purpose(s) of the data transfer and further processing
To perform and deliver contracted background check services for IMI Data Search, Inc. Clients. (EU and non EU Agreements)
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
IMI Data Search, Inc. will retain Transferred Personal Data in accordance with the provisions listed in the IMI Data Search, Inc. Privacy Notice. Client shall retain data as long as there is a business or a statutory requirement to maintain the data.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Same as above
C. COMPETENT SUPERVISORY AUTHORITY
MODULE ONE: Transfer controller to controller
Identify the competent supervisory authority/ies in accordance with Clause 13
Data Protection Commission
21 Fitzwilliam Square South
Dublin 2
D02 RD28
The Republic of Ireland
(or its replacement or successor)
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
MODULE ONE: Transfer controller to controller
The data importer has implemented and will maintain security standards at least as protective as those set out below.
Data importer will ensure that only authorized staff can access personal or sensitive data.
Data importer will ensure that all personnel engaged in research under this agreement are bound by a written duty to keep information such as information confidential within the terms of the agreement.
Data importer and exporter agrees to monitor compliance with the obligations of this section and notify the data controller if they suspect or know of any unauthorized access or attempt to access personal or sensitive data.
Data importer agrees to have reasonable procedures for the fair and equitable use of background information and to secure the confidentiality of private information. Data importer agrees to take precautionary measures to protect the security and dissemination of all personal or sensitive data.
Data importer ensures that all devices used to access personal or sensitive data are placed in a secure location and accessible only by authorized staff, and that the devices are secured when not in use through means including, but not limited to, screen locks, shutting power controls off or other commercially reasonable security procedures.
Data importer agrees when sending, transferring or shipping personal or sensitive data or otherwise confidential information, data importer will encrypt the data using minimum standards such as Advanced Encryption Standard (AES 128 bits and higher) or RSA (1024 bits and higher) encryption algorithms.
Data importer will take reasonable measures to protect against unauthorized access or use of personal or sensitive data in connection with its disposal and destruction.
Data importer will not ship hardware or software between locations or to third parties without deleting all personal or sensitive data.
Data importer will use commercially reasonable efforts to protect personal or sensitive data when stored on servers, subject to the following requirements; (i) personal or sensitive data must be protected by multiple layers of network security, including, but not limited to, firewalls, routers, intrusion detection devices; (ii) secure access (both physical and network) to systems storing personal or sensitive data must include authentication and passwords that are changed at least every ninety (90) days; and (iii) all servers must be kept current and patched on a timely basis with appropriate security-specific systems and underlying subsystems patched, as they are available.
Data importer will have the ability to restore the availability and access to personal or sensitive data in a timely manner in the event of a physical or technical incident.
ANNEX III – Not Applicable
ANNEX IV - SUPPLEMENTARY TERMS FOR SWISS FDPA TRANSFERS ONLY
The following terms supplement the Clauses only if and to the extent the Clauses apply with respect to data transfers subject to the Federal Data Protection Act of 19 June 1992 (Switzerland):
ANNEX V - SUPPLEMENTARY TERMS FOR UK GDPR TRANSFERS ONLY
The following United Kingdom International Data Transfer Addendum to the European Commission Standard Contractual Clauses supplements the Clauses only if and to the extent the Clauses apply with respect to data transfers subject to the UK GDPR.
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
VERSION B1.0, in force 21 March 2022
This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Part 1: Tables
Table 1: Parties
Revised: August 7, 2023)
(Changes 3.18, 3.38, 9, 10, 11)
TERMS AND CONDITIONS
IMI DATA SEARCH, INC. CLIENT AGREEMENT
IMI Data Search, Inc. and Client agree to the following:
1 Definitions
1.1 "IMI" means IMI Data Search, Inc., a California corporation, on behalf of itself, its officers and employees.
1.2 "Service" means business services and information products provided by or through IMI, which include business and personal credit reports, Anti-Money Laundering (AML), Counter Financing of Terrorism (CFT), and Know Your Customer (KYC) due diligence reports, background investigations and employment screening services, internationally and within the United States.
1.3 "Client" means the organization obtaining the Service.
1.4 "Reseller" means a Client providing the Service to an End User.
1.5 "Applicable Law" means any applicable foreign, federal, state, or other laws, rules, regulations, or interpretations by relevant governmental regulatory organizations.
1.6 "International" means any country or territory outside the United States and its protectorates.
1.7 "Confidential Information" means any and all proprietary or secret data; sales or pricing information relating to either party, its operations, employees, products, or services; and all information relating to any customer, potential customer, agent, and/or independent sales outlet.
1.8 "End User" means the organization that is the end user of the data.
1.9 "EU" means the European Union.
1.10 "EEA" means the European Economic Area.
1.11 "EFTA" means the European Free Trade Association.
1.12 "UK" means the United Kingdom.
1.13 "Data Controller" means a company who, alone or jointly, determines the purposes and the means of processing personal data.
2 IMI Obligations
2.1 The Service will provide Client with information gathered for the purpose requested, by IMI, furnished to IMI by third-party agents, or a combination thereof.
2.2 IMI uses commercially reasonable efforts to comply with all Applicable Laws, regulations, rules, and standards of all governing jurisdictions and performs Services generally in a workmanlike manner according to industry standards. Although reasonable effort is made by IMI and its agents to ensure accuracy, IMI does not act as a guarantor of the accuracy or completeness of the information.
2.3 If IMI discovers any errors or omissions in research, IMI will send a supplement report updating and correcting the original report.
2.4 When Service is Used for a Subject who is a Resident of or the Location of the Background Screening is the EU, EEA, UK, and Switzerland
2.4.1 IMI Data Search, Inc. will function as Data Controller in accordance with the EU’s General Data Protection Regulation, UK’s Data Protection Act, and Switzerland’s new Act on Federal Data Protection (nFADP).
3 Client Obligations and Understanding
3.1 Client will comply with the terms set forth in this agreement.
3.2 Client will pay for the Service as set forth in this agreement's Payments and Pricing section. Prior to requesting Service, Client will carefully review each service’s respective "Services" link and order form (which may vary by country). Client understands that this information may not always apply to its specific request when a response or result is obtained.
3.3 When Service Used for an FCRA purpose and Subject is a Resident of the United States, or the Point of Impact Decision will be Made in the United States
3.3.1 Prior to requesting Service for a report on a consumer, Client, or their End User will inform the subject in writing that either a consumer report or an investigative consumer report will be acquired and will obtain the subject's authorization in writing.
3.3.2 Prior to requesting Service for a report on a consumer, Client or their End User will provide the subject a written summary of their rights (including the right for additional disclosures regarding the nature and scope of the investigation) in accordance with Applicable Law. Additionally, Client or their End User will provide Vermont consumers a copy of Section 2480e of the Vermont Fair Credit Reporting Statute.
3.3.3 User agrees to comply with and provide all statutorily required notices in Section 615 of the Fair Credit Reporting Act.
3.4 Prior to requesting Service for a report on a consumer, Client or their End User will make a visual inspection of the consumer’s identification document and confirm the document visually matches the consumer’s information.
3.5 Client and End User agree that each consumer report will only be used for a one-time use.
3.6 When Requesting International Service or When the Subject is Currently a Resident of an International Country
3.6.1 Prior to requesting Service, Client or End User will inform and obtain consent from the consumer that their personal data may be used to enable IMI, Client, Reseller, End User, or their agents to complete Service and that their personal information may be transferred to other countries, including countries that have inadequate privacy laws according to the European Commission, data protection commissions or government authorities.
3.7 Client and their End Users will only use the information being ordered for the Reason for Request indicated in the order and will not use it for any other purpose without the prior consent of IMI. The Service is not provided or intended to be used for investigations or due diligence investigations of consumers without Client having and warranting that it has in its possession an informed consent signed by the subject agreeing to research being done to support the order(s) placed by Client. The Service is not to be used to gather evidence for legal actions.
3.8 Client and their End Users will comply with all Federal, State, Local and International laws and regulations applicable to the use of the Service, including, but not limited to, U.S. economic sanctions regulations and Title VII of the Civil Rights Act of 1964, Fair Credit Reporting Act disclosure and authorization requirements, adverse action provisions and international data transfer directives. Client accepts full responsibility for complying with all laws and for using the information products it receives from IMI in a legally acceptable fashion that is not in violation of any Applicable Laws including but not limited to, International, Federal, or State Equal Employment Opportunity laws or regulations. Client agrees to comply with and provide all statutorily required notices when using information products. Client accepts full responsibility for any and all consequences of the use or dissemination of those products.
3.9 Client understands that some Services as outlined in the Services Info section for the Service will require additional Addendums to be signed before IMI can provide information to Client.
3.10 Reseller understands that some Services may only be available to End User clients. End User understands that data may not be passed from the End User to any third party.
3.11 As a condition of entering into this agreement, Client certifies that it has reasonable procedures designed to comply with all applicable International, local, state, and federal laws.
3.12 To ensure that IMI data is safeguarded and only provided to companies that have been appropriately verified and credentialed, Reseller will complete due diligence on any End User requesting Service prior to being provided access to the Service. Reseller will have an agreement with End User which will clearly outline the obligations of the End User as listed in this agreement.
3.13 Client understands that background screening may be conducted through the services of a third-party independent contractor. Client understands that criminal and other background records are maintained in various ways. Client understands there are differences in foreign laws, language, and the manner in which different records are maintained and reported. IMI is not an insurer or a guarantor of the accuracy of the information reported.
3.14 When Service Used for Employment Purposes Where the Employer is Located in the United States, the Job is in the United States, or When the Subject Currently Resides in the United States
3.14.1 If the Service the Client obtains from IMI are to be used for an employment purpose, Client certifies that prior to obtaining or causing a consumer report or an investigative consumer report to be obtained, a clear and conspicuous disclosure, in a document consisting solely of the disclosure, will be made in writing to the consumer explaining that a consumer report or investigative consumer report may be obtained for employment purposes. This disclosure will satisfy all requirements identified in Section 606(a)(1) of the FCRA. Any applicable state or local law disclosures will be made separately from the FCRA consumer report disclosure or the FCRA investigative consumer report disclosure. The consumer will have authorized, in writing, the obtaining of the report by End User.
3.14.2 If the consumer is denied employment, or other adverse employment action is taken based in whole or in part on the information products provided by IMI, End User will provide to the consumer: (1) a copy of the report; and (2) a description, in writing, of the rights of the consumer entitled: "Summary of Your Rights Under the Fair Credit Reporting Act." After the appropriate waiting period, End User will issue to the consumer notice of the adverse action taken, including the statutorily required notices identified in Section 615 of the Fair Credit Reporting Act.
3.15 Investigative Consumer Reports
3.15.1 In addition to the disclosure requirements identified in 3.14, if the consumer makes a written request within a reasonable amount of time, Client will provide: (1) information about whether an investigative consumer report has been requested; (2) if an investigative consumer report has been requested, written disclosure of the nature and scope of the investigation requested; and (3) IMI's contact information, including complete address and US toll-free telephone number. This information will be provided to the consumer no later than five (5) days after the request for the disclosure was received from the consumer or the report was first requested, whichever is the later.
3.16 Consumer Reports
3.16.1 In addition to the requirements identified above, Client and End User have read and understood their obligations under the FCRA and the penalties for requesting consumer reports under false pretenses. Client understands that unauthorized access to consumer reports may subject them to civil and criminal liability under the FCRA, punishable by fines and imprisonment.
3.17 US National/Multi-State Database Searches
3.17.1 IMI recommends that Client screen its applicants or employees at the county courthouse or online system, federal, and multi-state/nationwide database levels. Client understands that if it chooses not to conduct searches at these levels, IMI cannot be held responsible for any existing records that are not included in the Client's coverage requested. Client further understands that the multi-state/nationwide database report will only be offered in conjunction with a county-level verification of any records found. Client will bear any additional costs associated with this verification.
3.18 Client understands that credit reports may be obtained from a third party credit bureau and agrees that information supplied to a credit bureau may be added to the subject’s credit report in the normal course of business which may be released by the credit bureau to its customers.
3.19 When Service is Used for a Subject who is a Natural Person and Resident of, or the Location of the Background Screening is in the EU, EEA, UK, and Switzerland
3.19.1 Prior to requesting EU, EEA, UK or Switzerland Background Screening, Client or their End User will notify the subject of the purpose in collecting the data, the different categories of background screening to be completed, that a third party including IMI Data Search, Inc. and its representative Owens Europe Screening Ltd. may be used to compile information about them, provide the subject with a link to the IMI Data Search, Inc. and Owens Europe Screening Ltd. privacy policies, the categories of persons to whom the data may be disclosed, the consequences of not authorizing the background screening, the right to withdraw consent, and the right to access a copy of their report and have inaccurate information corrected.
3.19.2 Prior to requesting EU, EEA, UK, or Switzerland Background Screening, Client or their End User will obtain a freely given, specific, explicit, informed, and unambiguous consent from the subject.
3.19.3 Client and End Users will have a physical and logical security policy and a security assurance plan. This policy and plan should be compliant with section 5 of this agreement and shall be made available to IMI Data Search, Inc. or Owens Europe Screening Ltd. upon request.
3.19.4 Client and End Users will notify IMI immediately if the subject withdraws consent, requests rectification of inaccurate personal data, or requests data erasure.
3.19.5 If the subject wants to exercise the right of access or if the subject wants to contact IMI directly about any of their rights, Client and End User will direct the subject to the IMI privacy notice, which will list the current point of contact.
3.19.6 Client and IMI agree that accepting the terms and conditions represents full execution by both parties of the Commission Implementing Decision on 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. (See: Standard contractual clauses for international transfers.) Appendix and Annexes appear at the end of the agreement.
3.20 US Driver's License Verification and Driving Records
3.20.1 Client hereby certifies US Driver's License Verification and Driving Records will only be ordered in strict compliance with the Driver Privacy Protection Act ("DPPA", at 18 U.S.C. § 2721 et seq.) and any related state laws. Client further certifies that no US Driver's License Verification and Driving Records will be ordered without first obtaining the written consent of the consumer to obtain driving records, evidence of which will be transmitted to IMI in the form of the consumer's signed authorization form. Client also certifies that it will use this information only in the normal course of business to obtain lawful information relating to the holder of a commercial driver's license or to verify information provided by an applicant or employee. Client will not transmit any data contained in the resulting US Driver's License Verification and Driving Records via the public Internet, electronic mail, or any other unsecured means.
3.21 Arrest Warrants
3.21.1 In the course of completing background checks, IMI may uncover active arrest warrants that are outstanding against the subject. In these cases, IMI may be contacted by the law enforcement agency seeking the subject. Client understands that IMI will furnish law enforcement any information contained within the subject's file to assist in the subject's apprehension. Additionally, IMI may contact Client, and Client agrees to release to IMI any and all information Client may have which will further the apprehension of the wanted individual.
3.22 Client agrees and understands that Service and amount of information may vary greatly due to numerous variables, some of which may be outside IMI's control (e.g. subject's unique history, available data, Applicable Laws, local search customs, source repository policies, organization's lack of cooperation, etc.). Information is obtained from IMI, third-party agents/sources, in-country agents/sources, or a combination thereof.
3.23 Client agrees and understands that though name variations may be common in a particular country and some repositories or agents may search for name variations, no consistency or guarantee that variations will be searched is available without the commitment of an additional order for each name. Searches are per jurisdiction unless otherwise indicated.
3.24 Client agrees and understands that many courts and some police agencies do not issue documents verifying a non-record. If a document is available and is required by Client, additional fees and delays may apply.
3.25 Client agrees and understands that there are fees for Service provided by IMI. Furthermore, there may be out-of-pocket costs that must be advanced by IMI, including, but not limited to, court fees and International agent fees.
3.26 Client agrees and understands that published delivery times vary by product and country and are an estimate based on the experience of previous orders – they are not a guarantee. If a product lists a delivery time range, the order is considered to be late on the day after the last date in the range, not the first date. Orders are subject to delays depending upon source(s) involved and other factors outside IMI's control, which may include, but is not limited to, extended holidays, civil strife, natural disasters, records not readily accessible, slow responses from courts in obtaining clarifications and lengthy court procedures in acquiring case files for further research after a name match search is performed (e.g. eliminating false positives, researching potential court errors or contradictory information from multiple sources, etc.).
3.27 Client agrees and understands that status updates and estimated completion times may not be practical or observed in other countries and, if obtained, may lack the level of specificity commonly expected. IMI will track and follow orders and make its best efforts to obtain detailed status updates on Client reports where possible.
3.28 Client agrees and understands that IMI is not responsible for the internal management of its agent's, its agent's employees, its agent's vendors and/or its agent's data sources.
3.29 Client and End Users understand IMI does not provide legal advice in the provision of its Service, and Client acknowledges it is not obtaining from IMI nor relying on IMI for legal advice of any kind. Client will base its decisions on its own guidelines, policies and procedures. Any consultation and sample forms that may be provided by IMI will be provided for informational purposes only and IMI will not be considered to be providing legal advice. IMI advises that Client consult experienced counsel to ensure compliant procurement and use of IMI reports in connection with its particular credit, due diligence or screening program.
3.30 Client and End Users understand they are subject to periodic audits and will provide reasonable evidence regarding their compliance with their obligations under this agreement.
3.31 Client agrees that IMI has provided Client with a copy of the Notice to Users of Consumer Reports: Obligations of Users. Resellers agree to provide a copy of the Notice to Users of Consumers Reports: Obligations of Users to End Users prior to using Service.
3.32 Client recognizes that information is obtained from various third-party sources. The information supplied to IMI by its agents is "as is" and cannot be guaranteed to be error-free. In requesting any Services, Client accepts that information/content cannot be guaranteed as accurate in that IMI, its agents, or associates have no practical opportunity to audit or confirm all source data.
3.33 Client also understands that processing of court or police records, and other governmental or commercial searches vary based on local laws, regulations, and purpose. The information provided by agents to IMI may be reflective of country variances. The quality of information gathered in one country cannot be used as a measurement for information gathered in another country; record-keeping practices vary by country.
3.34 Client agrees and understands that IMI's agent identities are proprietary and not available for audit.
3.35 Client certifies it is not an individual or entity in Iran, Syria, Sudan, the Crimea region of Ukraine, Cuba, or North Korea. Client also certifies that it is not otherwise designated on the Specially Designated Nationals and Blocked Persons List (SDN List) or owned or controlled by 50 percent or more, in the aggregate, by an individual or entity on the SDN List.
3.36 Client certifies that this information will not be used to conduct a transaction with an individual or entity on the SDN List or within a sanctioned territory that would be prohibited for a U.S. individual or entity pursuant to the U.S. economic sanctions regulations.
3.37 Prior to requesting Service for a report on a consumer, Client or their End User will obtain the subject’s consent to send legal notices electronically.
3.38 United States Business Credit Reports
3.38.1 Restrictions on Use of United States Business Credit Reports: Client certifies to Trans Union and Reseller that the United States Business Credit Report Services: (i) will be used solely in connection with a present or prospective credit or financial transaction with the business entity inquired upon or for other legitimate commercial purposes, including business research; (ii) will not be used as a factor in establishing an individual's eligibility for (a) credit or insurance to be used primarily for personal, family or household purposes, or (b) employment; (iii) will be used in compliance with all applicable laws, regulations and ordinances, and all special use restrictions set forth in the agreement or adopted by Trans Union and/or IMI hereafter; and (iv) will be maintained in confidence and disclosed only to persons whose duties reasonably relate to the business purposes for which the information was requested.
4 Payments and Pricing
4.1 Client is responsible for each order placed on its account.
4.2 Client will be charged for all Services at the rates set forth at the time each order is placed. However, IMI reserves the right to deny continuation of any order if unanticipated or unreasonable price fluctuations occur (e.g. agent pricing, currency fluctuations, etc.) and reserves the right to cancel any order (with an appropriate refund) if a commensurate source is not obtainable.
4.3 Pricing is subject to change without notice.
4.4 Client will be responsible for charges resulting from Client's errors in inputting data, entering duplicate orders, and canceling orders once processing has commenced.
4.5 Client understands that database-retrieved reports may not be canceled. Cancellations on freshly prepared reports must be received in writing within two (2) hours of receipt of the original order and must be approved by IMI.
4.6 Due to the customized nature of IMI's business, Client agrees that payments made by charge/credit/debit card can be debited at the time the Client's order is placed and not necessarily when delivery is made.
4.7 Non-payments, charge/credit/debit card chargebacks or refunds are not available and not acceptable for reasons including, but not limited to, report content, possible lateness, etc.
4.8 Reports over one working day late will be charged at the next slower delivery time if one is offered unless otherwise indicated in the services respective About information page.
4.9 Payment information collected from Client will be shared with financial institutions in order to process your payment.
4.10 To the extent that Client determines that it is exempt from any sales and use tax(es), Client shall provide IMI with the applicable and executed exemption certificate.
5 Data Security
5.1 Client and End User are responsible for the creation, confidentiality, and security of their passwords. Client will change passwords at least every ninety (90) days or sooner if Client suspects an unauthorized person has learned the password. Client agrees to immediately notify IMI of any unauthorized use of Client's account or password.
5.2 Client will ensure that only authorized staff can order and access IMI Services. Client will be responsible for all uses of its account, whether or not authorized by Client. Client will take necessary measures to prevent unauthorized ordering or access to Services including limiting the knowledge of account numbers, user IDs, and passwords. Client will notify IMI if a user is no longer responsible for ordering or accessing IMI Services.
5.3 Client and End User agrees to monitor compliance with the obligations of this section, and immediately notify IMI if Client or End User suspects or knows of any unauthorized access or attempt to access the Services.
5.4 Client agrees to have reasonable procedures for the fair and equitable use of background information and to secure the confidentiality of private information. Client agrees to take precautionary measures to protect the security and dissemination of all IMI Service data, consumer report or investigative consumer report information.
5.5 Client and End Users will ensure that authorized users of its account do not order Service for personal reasons.
5.6 Client and End Users ensure that all devices used to order or access Services are placed in a secure location and accessible only by authorized staff, and that devices are secured when not in use through means such as screen locks, shutting power controls off, or other commercially reasonable security procedures.
5.7 Client and End User agrees when sending, transferring, or shipping IMI Service data, Client will encrypt the data using minimum standards of Advanced Encryption Standard (AES 128 bits and higher) or RSA (1024 bits and higher) encryption algorithms.
5.8 Client and End User will not allow IMI Service data to be displayed via the internet unless utilizing, at a minimum, a three-tier architecture configured in accordance with industry best practices.
5.9 Client and End Users will encrypt IMI information when not in use, store printed information in a secured locked container when not in use, and utilize document disposal and destruction methods that render all data unintelligible in accordance with the Federal Trade Commission, or in accordance with stronger applicable local, state, or International law or banking/credit union regulators. Client and End Users will take reasonable measures to protect against unauthorized access or use of the information in connection with its disposal and destruction.
5.10 Client and End Users will not ship hardware or software between locations or to third parties without deleting all security information and personally identifiable consumer information.
5.11 Client and End Users will not use non-company owned assets including, but not limited to, personal computer hard-drives or portable and/or removable data storage equipments or media (e.g. laptops, zip drives, tapes, disks, CDs, DVDs, etc.) to store information obtained from IMI.
5.12 Client and End Users will use commercially reasonable efforts to protect IMI Service data when stored on systems, subject to the following requirements; (i) IMI Service data must be protected by multiple layers of network security including, but not limited to, firewalls, routers and intrusion detection devices; (ii) secure access (both physical and network) to systems storing IMI Service data, must include authentication and passwords that are changed at least every ninety (90) days; and (iii) all servers must be kept current and patched on a timely basis with appropriate security-specific systems and underlying subsystems patched, as they are available.
5.13 Client and End User will use commercially reasonable efforts to protect their connection with dedicated, industry-recognized firewalls configured and managed to adhere to industry-accepted best practices. Client and End User will use commercially reasonable efforts to route communications from End User’s or Client’s internal services to external systems through firewalls configured for network address translation (NAT).
5.14 Client and End User will use commercially reasonable efforts to establish procedures and login mechanisms for systems and networks that will allow tracking and analysis in the event there is a compromise and maintain an audit trail history for at least three (3) months for review by IMI.
5.15 Client and End Users will protect access to IMI Service data from unauthorized personnel, including employees, subcontractors, and freelancers hired by the Client or End User.
6 Term of Agreement
6.1 This agreement will be in full force and effect during periods of time that IMI is providing Service for Client. Client agrees that if it is found to be in violation of any specifications of this agreement, IMI has the right to terminate Client's access to Service.
7 Modifications to Agreement
7.1 IMI reserves the right to modify these Terms and Conditions at any time and any modification will be effective immediately upon posting of the modified agreement to the website. Client agrees that they are entirely responsible for reviewing these changes when accessing this website or its products, Service, and information, and understand that IMI Terms and Conditions may be updated from time to time with the last revision date being clearly shown at the top of the agreement. Continued use of any of IMI's Service after changes are made constitutes acceptance of this agreement as modified by the published changes.
8 Rights to Service
8.1 The Service is proprietary to IMI, and all rights to the Service are proprietary to and reserved by IMI.
9 Warranty and Warranty Disclaimers
9.1 Client acknowledges and agrees that, except as expressly provided in this section, IMI and its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively, make no representation or warranty whatsoever, either express or implied (including, but not limited to, implied warranties of merchantability or fitness for a particular purpose and implied warranties arising from the course of dealing or a course of performance) with respect to the accuracy, errors, omissions, currentness, validity, completeness, uninterrupted availability or suitability for Client's needs, of any Service provided under this agreement and IMI hereby expressly disclaims all representations and warranties.
9.2 The representations, warranties, covenants, and agreements contained in this agreement are for the sole benefit of the parties hereto, and their heirs, executors, administrators, legal representatives, successors, and assigns, and they will not be construed as conferring any rights on any other persons.
9.3 Client agrees and understands that satisfaction of its obligations under this agreement and all Applicable Law is the sole responsibility of Client, and that the obligations of Client are in no way conditioned or contingent upon the performance of IMI or any business or consumer reporting agency, End User, consumer or other third party.
10 Limitation of Liability
10.1 Client and their End Users release IMI and its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively, from any and all liability for damages of whatever kind, including indirect or consequential damages (including loss of profits, income, savings, goodwill, use or data).
10.2 Client and their End Users will not hold IMI, nor any of its suppliers, agents or subagents responsible for any compensation, reimbursement, or damages arising in connection with: (a) Client’s inability to access Service, including, but not limited to (i) termination of this agreement, (ii) IMI discontinuation of a Service offering, or (iii) system failures or other interruptions; (b) work performed, including, but not limited to, (i) delivery or fulfillment of Services (ii) Client’s or End User’s business decision made subsequent to receipt of data or lack thereof, (iii) overdue reports; or (c) any unauthorized access to, alteration of, or the deletion, destruction, damage or loss of data.
10.3 Client further agrees that the information will not be used as evidence or as a basis for any legal action.
10.4 If, notwithstanding the warranty disclaimer and limitation of liability, liability can be imposed on IMI and its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively, then Client agrees that the aggregate liability for any and all losses or injuries to the Client or their customer in connection with anything to be done or furnished under this agreement, regardless of the nature of the legal or equitable right claimed to have been violated, shall never exceed the amount paid to IMI for the affected Services and client covenants and IMI promotes that it will not sue IMI or its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively, for an amount greater than such sum and that it will not seek punitive damages in any suit against IMI and its suppliers, agents, contractors, officials, representatives or assigned agencies, including officers, employees or related personnel both individually and collectively.
11 Indemnification
11.1 Client and their End Users will indemnify, defend and hold harmless IMI and its suppliers, agents, contractors, officials, representatives, or assigned agencies, including officers, employees, or related personnel both individually and collectively from and against any and all claims, suits, proceedings, damages, costs, expenses (including without limitation, reasonable attorneys' fees and court costs) brought or suffered by any third party arising or resulting from, or otherwise in connection with any breach by Client of any of its representations, warranties or agreements in this agreement or its negligence or willful misconduct.
12 Force Majeure
12.1 IMI and its agents will not be liable for any delay or failure to perform any obligation under this agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes, or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.
13 Governing Law and Dispute Resolution
13.1 This agreement of Client's use of Service will be governed solely by the laws of the State of California, USA, and construed in accordance with the laws of the State of California, without effect to conflict of law principles.
13.2 In the event of any dispute between the parties, if the parties are unable to resolve the dispute after holding good faith and confidential discussions, then the dispute will be submitted to binding arbitration conducted in Thousand Oaks, Ventura County, California, USA, under the American Arbitration Association.
13.3 Notwithstanding the foregoing, each party will be entitled to seek immediate injunctive relief to protect its Confidential Information.
14 Assignment, Sub-License, or Resell
14.1 Client will neither transfer nor assign this agreement, in whole or in part, without IMI's prior written consent, which will not unreasonably be withheld.
15 Miscellaneous
15.1 The parties agree that the relationship of the parties created by this agreement is that of an independent contractor and not that of employer/employee, principal/agent, partnership, joint venture, or representative of the other. Except as authorized hereunder, neither party will represent to third parties that it is the employer, employee, principal, agent, joint venture or partner with, or representative of the other party.
15.2 Neither party will reveal, publish or otherwise disclose any Confidential Information to any third party without the prior written consent of the other party. The parties agree to keep this information confidential at all times during the term of this agreement and continuing for five years after receipt of any Confidential Information. Notwithstanding anything to the contrary within this agreement, in no event will IMI be required to destroy, erase or return any consumer reports or applicant data related thereto in IMI's files, all of which IMI will maintain as a consumer reporting agency in strict accordance with all applicable federal, state and local laws.
15.3 If any provision of this agreement is held to be invalid or unenforceable under Applicable Law in any jurisdiction, the validity or enforceability of the remaining provisions within the agreement will be unaffected as to the jurisdiction and the holding will not affect the validity or enforceability of any provision of this agreement in any other jurisdiction.
15.4 To the extent that any provision of this agreement is held to be invalid or unenforceable because it is overbroad, that provision will not be void but rather be limited only to the extent required by Applicable Law and enforced as so limited.
15.5 This agreement supersedes and replaces all prior agreements, commitments, representations, and understandings, oral or written, between IMI and Client.
16 Notices
16.1 To Client. IMI may provide any notice to you under this agreement by: (i) posting a notice on this site; or (ii) sending a message to the email address associated with your account. Notices IMI provides by posting on this site will be effective upon posting. Notices IMI provides by email will be effective when the email is sent. Client is responsible to keep their email address current with the IMI eCommerce system. Client will be deemed to have received any email sent to the email address associated with their account when the email is sent, whether or not Client actually received the email.
16.2 To IMI. To give IMI notice under this agreement, Client must contact IMI by personal delivery, overnight courier or registered or certified mail to IMI Data Search, Inc., 365 E. Avenida De Los Arboles, Ste.B, California 91360 USA. IMI may update the address for notices to IMI by posting a notice on this site.
16.3 Language. All communications and notices to be made or given under this agreement must be in the English language.
ANNEX
STANDARD CONTRACTUAL CLAUSES- MODULE ONE & FOUR
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)[1] 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.
(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 - Not Applicable
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 ONE: Transfer controller to controller
8.1 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. It may only process the personal data for another purpose:
(i) where it has obtained the data subject’s prior consent;
(ii) where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iii) where necessary in order to protect the vital interests of the data subject or of another natural person.
8.2 Transparency
(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:
(i) of its identity and contact details;
(ii) of the categories of personal data processed;
(iii) of the right to obtain a copy of these Clauses;
(iv) where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
(b) Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
(c) On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties 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.
(d) Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimisation
(a) Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
(b) If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
(c) The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation[2] of the data and all back-ups at the end of the retention period.
8.5 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 personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (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.
(b) The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(c) The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(d) 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 personal data breach, including measures to mitigate its possible adverse effects.
(e) In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.
(f) In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.
(g) The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.
8.6 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 or offences (hereinafter “sensitive data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.
8.7 Onward transfers
The data importer shall not disclose the personal data to a third party located outside the European Union[3] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:
(i) it 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 with respect to the processing in question;
(iii) the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;
(iv) it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;
(v) it is necessary in order to protect the vital interests of the data subject or of another natural person; or
(vi) where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
(a) Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
(b) The data importer shall make such documentation available to the competent supervisory authority on request.
MODULE FOUR: Transfer processor to controller
8.1 Instructions
(a) The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.
(b) The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.
(c) The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities.
(d) After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies.
8.2 Security of processing
(a) The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during transmission, and protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (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 of the personal data[7], the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.
(b) The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.
(c) The data exporter shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
8.3 Documentation and Compliance
(a) The Parties shall be able to demonstrate compliance with these Clauses.
(b) The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.
Clause 9 - Not Applicable
Clause 10
Data subject rights
MODULE ONE: Transfer controller to controller
(a) The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request.[10] The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.
(b) In particular, upon request by the data subject the data importer shall, free of charge :
(i) provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);
(ii) rectify inaccurate or incomplete data concerning the data subject;
(iii) erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.
(c) Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.
(d) The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter “automated decision”), which would produce legal effects concerning the data subject or similarly significantly affect him / her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:
(i) inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
(ii) implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.
(e) Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.
(f) The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.
(g) If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.
MODULE FOUR: Transfer processor to controller
The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679.
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.
[OPTION: The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body[11] at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.]
MODULE ONE: Transfer controller to controller
(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 ONE: Transfer controller to controller
MODULE FOUR: Transfer processor to controller
(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) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.
(c) 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.
(d) The Parties agree that if one Party is held liable under paragraph (c), 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.
(e) The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
Clause 13
Supervision
MODULE ONE: Transfer controller to controller
(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 ONE: Transfer controller to controller
MODULE FOUR: Transfer processor to controller (where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)
(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[12];
(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 fulfill 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 [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 ONE: Transfer controller to controller
MODULE FOUR: Transfer processor to controller (where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)
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.
(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 minimisation
(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.
(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 One: 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 ONE: Transfer controller to controller
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of The Republic of Ireland.
MODULE FOUR: Transfer processor to controller
These Clauses shall be governed by the law of a country allowing for third-party beneficiary rights. The Parties agree that this shall be the law of The Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
MODULE ONE: Transfer controller to controller
(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 The Republic of Ireland.
(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.
MODULE FOUR: Transfer processor to controller
Any dispute arising from these Clauses shall be resolved by the courts of The Republic of Ireland.
APPENDIX
EXPLANATORY NOTE:
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
ANNEX I
A. LIST OF PARTIES
Data exporter(s):
Name: CLIENT As specified in registration forms
Address: As specified in registration forms
Contact person’s name, position and contact details: As specified in registration forms
Activities relevant to the data transferred under these Clauses: IMI Data Search, Inc. provides Services in accordance with the Agreement. The Client may provide data relevant to a data subject.
Signature and date: The parties agree that execution of the Agreement by the Client on the IMI Data Search, Inc. website shall constitute execution of these Clauses by both parties.
Role: Processor or Controller, as applicable.
Name: IMI Data Search, Inc.
Address: 365 E. Avenida De Los Arboles, Ste. B, Thousand Oaks, California 91360, USA
Contact person’s name, position and contact details: Refer to online privacy notice, at https://www.imidatasearch.com/privay-policy.html for current contact.
Activities relevant to the data transferred under these Clauses: IMI Data Search, Inc. provides Services in accordance with the Agreement. IMI Data Search, Inc. may provide data gathered relevant to a data subject.
Signature and date: The parties agree that execution of the Agreement by the Client on the IMI Data Search, Inc. website shall constitute execution of these Clauses by both parties.
Role: Controller
Data importer(s):
Name: CLIENT As specified in registration forms
Address: As specified in registration forms
Contact person’s name, position and contact details: As specified in registration forms
Activities relevant to the data transferred under these Clauses: Client may receive Services in accordance with the Agreement.
Signature and date: The parties agree that execution of the Agreement by the Client on the IMI Data Search, Inc. website shall constitute execution of these Clauses by both parties.
Role: Processor or Controller, as applicable.
Name: IMI Data Search, Inc.
Address: 365 E. Avenida De Los Arboles, Ste. B, Thousand Oaks, California 91360, USA
Contact person’s name, position and contact details: Refer to online privacy notice, at http://www.imidatasearch.com/privacy-policy.html for current contact.
Activities relevant to the data transferred under these Clauses: IMI Data Search, Inc. may import data related to Service, including data from Client and Service results.
Signature and date: The parties agree that execution of the Agreement by the Client on the IMI Data Search, inc. website shall constitute execution of these Clauses by both parties.
Role: Controller
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Individuals subject to a background screening.
Categories of personal data transferred
Transferred Personal Data may include, for example:
● Personal details, including any information that identifies the data subject and their personal characteristics, including: name, address, contact details, age, date of birth, sex, and physical description.
● Employment details, including information relating to the employment of the data subject, including employment and career history, recruitment and termination details, attendance records, performance appraisals, training records, and security records.
● Financial details or credit reports, including information relating to the financial affairs of the data subject, including income, salary, assets and investments, payments, credit worthiness, loans, benefits, grants, insurance details, lien records, civil court, bankruptcy, insolvency, and pension information.
● Education and training details, including information which relates to the education and any professional training of the data subject, including academic records, qualifications, skills, training records, professional expertise, student and pupil records.
● Personal details issued as by a public authority, including passport details, national insurance numbers, identity card numbers, driving licence details, birth records and marriage records.
● Personal details relating to professional licenses or memberships.
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.
Transferred Personal Data may include special categories of personal data (as defined in the GDPR). This may include, for example: criminal records, personal data revealing racial or ethnic origin, or the processing of biometric data for the purpose of uniquely identifying a natural person.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Transfer shall only occur as needed for individual background screening requests.
Nature of the processing
Information will be processed relevant to the Service in accordance with the Agreement.
Purpose(s) of the data transfer and further processing
To perform and deliver contracted background check services for IMI Data Search, Inc. Clients. (EU and non EU Agreements)
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
IMI Data Search, Inc. will retain Transferred Personal Data in accordance with the provisions listed in the IMI Data Search, Inc. Privacy Notice. Client shall retain data as long as there is a business or a statutory requirement to maintain the data.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Same as above
C. COMPETENT SUPERVISORY AUTHORITY
MODULE ONE: Transfer controller to controller
Identify the competent supervisory authority/ies in accordance with Clause 13
Data Protection Commission
21 Fitzwilliam Square South
Dublin 2
D02 RD28
The Republic of Ireland
(or its replacement or successor)
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
MODULE ONE: Transfer controller to controller
The data importer has implemented and will maintain security standards at least as protective as those set out below.
Data importer will ensure that only authorized staff can access personal or sensitive data.
Data importer will ensure that all personnel engaged in research under this agreement are bound by a written duty to keep information such as information confidential within the terms of the agreement.
Data importer and exporter agrees to monitor compliance with the obligations of this section and notify the data controller if they suspect or know of any unauthorized access or attempt to access personal or sensitive data.
Data importer agrees to have reasonable procedures for the fair and equitable use of background information and to secure the confidentiality of private information. Data importer agrees to take precautionary measures to protect the security and dissemination of all personal or sensitive data.
Data importer ensures that all devices used to access personal or sensitive data are placed in a secure location and accessible only by authorized staff, and that the devices are secured when not in use through means including, but not limited to, screen locks, shutting power controls off or other commercially reasonable security procedures.
Data importer agrees when sending, transferring or shipping personal or sensitive data or otherwise confidential information, data importer will encrypt the data using minimum standards such as Advanced Encryption Standard (AES 128 bits and higher) or RSA (1024 bits and higher) encryption algorithms.
Data importer will take reasonable measures to protect against unauthorized access or use of personal or sensitive data in connection with its disposal and destruction.
Data importer will not ship hardware or software between locations or to third parties without deleting all personal or sensitive data.
Data importer will use commercially reasonable efforts to protect personal or sensitive data when stored on servers, subject to the following requirements; (i) personal or sensitive data must be protected by multiple layers of network security, including, but not limited to, firewalls, routers, intrusion detection devices; (ii) secure access (both physical and network) to systems storing personal or sensitive data must include authentication and passwords that are changed at least every ninety (90) days; and (iii) all servers must be kept current and patched on a timely basis with appropriate security-specific systems and underlying subsystems patched, as they are available.
Data importer will have the ability to restore the availability and access to personal or sensitive data in a timely manner in the event of a physical or technical incident.
ANNEX III – Not Applicable
ANNEX IV - SUPPLEMENTARY TERMS FOR SWISS FDPA TRANSFERS ONLY
The following terms supplement the Clauses only if and to the extent the Clauses apply with respect to data transfers subject to the Federal Data Protection Act of 19 June 1992 (Switzerland):
- The term ’Member State’ will be interpreted in such a way as to allow data subjects in Switzerland to exercise their rights under the Clauses in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the Clauses.
- If the relevant data transfers are exclusively subject to the Federal Data Protection Act of 19 June 1992 (Switzerland), the competent supervisory authority/ies for purposes of Annex I.C (Competent Supervisory Authority) of the Clauses will be the Federal Data Protection and Information Commissioner in Switzerland (or its replacement or successor).
ANNEX V - SUPPLEMENTARY TERMS FOR UK GDPR TRANSFERS ONLY
The following United Kingdom International Data Transfer Addendum to the European Commission Standard Contractual Clauses supplements the Clauses only if and to the extent the Clauses apply with respect to data transfers subject to the UK GDPR.
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
VERSION B1.0, in force 21 March 2022
This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Part 1: Tables
Table 1: Parties
Table 2: Selected SCCs, Modules and Selected Clauses
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
Table 4: Ending this Addendum when the Approved Addendum Changes
Part 2: Mandatory 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 […].
[2] This requires rendering the data anonymous in such a way that the individual is no longer identifiable by anyone, in line with recital 26 of Regulation (EU) 2016/679, and that this process is irreversible.
[3] 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.
[4] 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.
[5] See Article 28(4) of Regulation (EU) 2016/679 and, where the controller is an EU institution or body, Article 29(4) of Regulation (EU) 2018/1725.
[6] 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 purposes of these Clauses.
[7] This includes whether the transfer and further processing 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 or offences.
[8] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
[9] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
[10] That period may be extended by a maximum of two more months, to the extent necessary taking into account the complexity and number of requests. The data importer shall duly and promptly inform the data subject of any such extension.
[11] The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.
[12] 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.
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 […].
[2] This requires rendering the data anonymous in such a way that the individual is no longer identifiable by anyone, in line with recital 26 of Regulation (EU) 2016/679, and that this process is irreversible.
[3] 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.
[4] 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.
[5] See Article 28(4) of Regulation (EU) 2016/679 and, where the controller is an EU institution or body, Article 29(4) of Regulation (EU) 2018/1725.
[6] 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 purposes of these Clauses.
[7] This includes whether the transfer and further processing 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 or offences.
[8] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
[9] This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
[10] That period may be extended by a maximum of two more months, to the extent necessary taking into account the complexity and number of requests. The data importer shall duly and promptly inform the data subject of any such extension.
[11] The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.
[12] 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.
