Data Processing Addendum (DPA)
- The following capitalised terms used in this DPA shall be defined as follows:
- "Controller" has the meaning given in the GDPR.
- "Customer Personal Data" means the "personal data" (as defined in the GDPR) described in Appendix 2 and any other personal data that Metamoto Processes on behalf of Customer in connection with the provision of the Metamoto Services.
- "Data Protection Laws" means the "GDPR, any applicable national implementing legislation including, and in each case as amended, replaced or superseded from time to time, and all applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of Customer Personal Data.
- "Data Subject" has the meaning given in the GDPR.
- "Processing" has the meaning given in the GDPR, and "Process" will be interpreted accordingly.
- "Processor" has the meaning given in the GDPR.
- "Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Customer Personal Data.
- "Standard Contractual Clauses" means the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593 set out in Appendix 1 to this DPA or any subsequent version thereof released by the European Commission (which will automatically apply), and which includes Appendix 2 (Details of the Processing and Transfer) and Appendix 3 (Technical and Organisational Measures) to this DPA.
- "Subprocessor" means any Processor engaged by Metamoto who agrees to receive from Metamoto Customer Personal Data.
- "Supervisory Authority" has the meaning given in the GDPR.
- Data Processing
- Instructions for Data Processing. Metamoto will only Process Customer Personal Data in accordance with Customer’s written instructions unless Processing is required by European Union or Member State to which Metamoto may be subject, in which case Metamoto shall, to the extent permitted by that law, inform Customer of that legal requirement before Processing that Customer Personal Data. The Agreement (subject to any changes to the Metamoto Services agreed between the parties) and this DPA shall be Customer’s complete and final instructions to Metamoto in relation to the Processing of Customer Personal Data.
- Processing outside the scope of this DPA or the Agreement will require prior written agreement between Customer and Metamoto on additional instructions for Processing.
- Required consents. Where required by applicable Data Protection Laws, Customer will ensure that it has obtained all necessary consents and complies with all applicable requirements under Data Protection Laws for the Processing of Customer Personal Data by Metamoto in accordance with the Agreement.
- Transfers of Customer Personal Data
- Authorised Subprocessors. Customer agrees that Metamoto may use Subprocessors to Process Customer Personal Data. In particular, Customer agrees that Metamoto may use at least the following as Subprocessors. A complete list is available upon request of a signed DPA from Metamoto:
- Metamoto shall notify Customer from time to time of the identity of any Subprocessors engaged. If Customer (acting reasonably) objects to a new Subprocessor on grounds related to the protection of Customer Personal Data only, then without prejudice to any right to terminate the Agreement, Customer may request that Metamoto moves the Customer Personal Data to another Subprocessor and Metamoto shall, within a reasonable time following receipt of such request, use reasonable endeavours to ensure that the original Subprocessor does not Process any of the Customer Personal Data. If it is not reasonably possible to use another Subprocessor, and Customer continues to object for a legitimate reason, either party may terminate the Agreement on thirty (30) days written notice. If Customer does not object within thirty (30) days of receipt of the notice, Customer is deemed to have accepted the new Subprocessor.
- Save as set out in clauses 3.1 and 3.2, Metamoto shall not permit, allow or otherwise facilitate Subprocessors to Process Customer Personal Data without Customer’s prior written consent and unless Metamoto:
- enters into a written agreement with the Subprocessor which imposes equivalent obligations on the Subprocessor with regard to their Processing of Customer Personal Data, as are imposed on Metamoto under this DPA; and
- shall at all times remain responsible for compliance with our obligations under the DPA and will be liable to Customer for the acts and omissions of any Subprocessor as if they were Metamoto’s acts and omissions.
- Prohibition on Transfers of Customer Personal Data. To the extent that the Processing of Customer Personal Data by Metamoto involves the export of such Customer Personal Data to a country or territory outside the EEA, other than to a country or territory ensuring an adequate level of protection for the rights and freedoms of Data Subjects in relation to the Processing of personal data as determined by the European Commission (an "International Transfer"), such transfer shall be governed by the Standard Contractual Clauses. In the event of any conflict between any terms in the Standard Contractual Clauses, this DPA and the Agreement, the Standard Contractual Clauses shall prevail.
- Data Security, Audits, and Security Notifications
- Security Obligations. Metamoto will implement and maintain the technical and organizational measures set out in Appendix 3. Customer acknowledges and agrees that these measures ensure a level of security that is appropriate to the risk in accordance with Data Protection Laws.
- Upon Customer’s reasonable request, Metamoto will make available all information reasonably necessary to demonstrate compliance with this DPA.
- Security Incident Notification. If Metamoto becomes aware of a Security Incident, Metamoto will (a) notify Customer of the Security Incident within 72 hours; and (b) investigate the Security Incident and provide Customer (and any law enforcement or regulatory official) with reasonable assistance as required to investigate the Security Incident.
- Employees and Personnel. Metamoto will treat the Customer Personal Data as confidential, and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of Customer Personal Data.
- Audits. Metamoto will, upon reasonable request from the Customer, allow for and contribute to audits, including inspections, conducted by the Customer (or a third party auditor on behalf of, and mandated by, the Customer) provided (i) such audits or inspections are not conducted more than once per year (unless requested by a Supervisory Authority); (ii) are conducted only during business hours; and (iii) are conducted in a manner that causes minimal disruption to Metamoto’s operations and business.
- Access Requests and Data Subject Rights
- Government Disclosure. Metamoto will notify Customer of any request for the disclosure of Customer Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.
- Data Subject Rights. Where applicable, and taking into account the nature of the Processing, Metamoto will use reasonable endeavours to assist Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising Data Subject rights laid down in Data Protection Laws.
- Data Protection Impact Assessment and Prior Consultation
- To the extent required under applicable Data Protection Laws, Metamoto will provide Customer with reasonably requested information regarding the Metamoto Services to enable Customer to carry out data protection impact assessments or prior consultations with any Supervisory Authority, in each case solely in relation to Processing of Customer Personal Data and taking into account the nature of the Processing and information available to Metamoto.
- Deletion of data. Subject to 7.2 below, Metamoto will, at Customer’s election and within 90 (ninety) days of the date of termination of the Agreement:
- return a copy of all Customer Personal Data Processed by Metamoto by secure file transfer to the Customer (and securely delete all other copies of Customer Personal Data Processed by Metamoto); or
- securely delete the Customer Personal Data Processed by Metamoto.
- Metamoto and its Subprocessors may retain Customer Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that Metamoto ensures the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.
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For the purposes of this Appendix 1, references to the "data exporter" and "data importer" shall be to the Customer and to Metamoto respectively (each a "party"; together "the parties").
For the purposes of the Clauses:
- 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- 'the data exporter' means the controller who transfers the personal data;
- 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 2 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Details of the transfer
The data exporter agrees and warrants:
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 3 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 3, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organizational security measures specified in Appendix 3 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
- any accidental or unauthorized access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 3 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variations of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Data exporterThe Customer (Data Exporter) is (i) the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and, (ii) all Affiliates (as defined in the Agreement) of the Customer that are established within the European Economic Area (EEA) and Switzerland, that have purchased or been provided access to Metamoto Services governed by the Metamoto online Terms of Service or a signed agreement.
Data importerMetamoto, Inc. is a provider for simulation as a service for autonomous systems which processes data (including personal data) at the instruction of the Data Exporter under the terms of this agreement.
Data subjectsCustomer’s employees or personnel and any other data subjects whose data the Customer submits, transfers, loads or otherwise provides to Metamoto via the Metamoto Service.
Categories of dataBasic details, contact information, usage information, records of interactions, activity logs, and any other personal data the Customer or its authorized users submit to the Service.
Processing OperationsThe Customer Personal Data will be subject to the following basic processing activities: transmitting, collecting, storing, and analyzing data in order to provide the Metamoto Service to the Customer, and any other activities related to the provision of the Metamoto Service or specified in the Agreement.
The obligations and rights of the CustomerThe obligations and rights of the User are as set out in this DPA.
Technical and Organizational Security MeasuresMetamoto and its sub-processors have implemented and shall maintain a security program in accordance with industry standards. These programs shall, at a minimum, include:
Policies and GovernanceMetamoto shall maintain necessary policies and governance procedures to maintain the technical safeguards for the protection of security, confidentiality and integrity of Customer Data, including Personal data.
External Attack SurfaceMetamoto employs multiple layers of network and application defense mechanisms to protect its external attack surface. Metamoto considers potential attack vectors and incorporates appropriate technologies into external facing systems. These technologies are intended to provide insight into ongoing attack activities and provide necessary information to respond to incidents. Mitigations involve limiting the size and make-up of Metamoto’s attack surface through preventative measures; employing preventative controls at data entry points; and employing technologies that automatically detect and notify of high risk situations.
Physical devices and Cloud HostingMetamoto leverages cloud hosted services for the processing and storage of customer information. Physical devices within the organization deploy a combination of encryption, anti-malware and device hardening to ensure adequate protection of customer data that may be processed or temporarily stored on these devices.
Access controlsMetamoto implements suitable measures in order to prevent unauthorized access to the data processing environments where the personal data is processed or used, including: protection and restriction of access methods; establishing access authorization procedures for employees and third parties, including documentation.
Back-ups and segmentationMetamoto and its sub-processors implement suitable measures to ensure that personal data are protected from accidental destruction or loss. These measures include infrastructure redundancy; and redundant backup storage for restoration in case of failure of the primary system.
Transmission and encryptionMetamoto implements suitable measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission and transport of the data to and from the Metamoto platform when using Metamoto managed protocols. This is accomplished by various measures including: use of network layer protections, and encryption technologies to protect the gateways and user interfaces; as far as possible, all sessions and account modifications are logged, monitored and tracked.
Application and Development SecurityMetamoto maintains a Secure Development Lifecycle process, to include but not limited to security standards and change management procedures designed to address security requirements of our platform operations, code reviews and testing, threat modeling, penetration testing, and design reviews. This process is managed and overseen by a specialized security engineering team. Metamoto uses a software-based system for managing source code and included open source packages. Metamoto conducts periodic assessments of its software products and deployed platforms to confirm license and security compliance. All changes must go through designated control procedures that address security, availability and user acceptance requirements. These software and configuration changes are managed and tracked using internal ticketing systems.
Physical securityMetamoto inherits the physical security controls from its cloud providers. Annually, Metamoto reviews its sub-processor available SOC, relevant DPA and security agreements to ensure physical access to facilities housing the system (for example, data centers, backup media storage, and other sensitive locations, as well as sensitive system components within those locations) is restricted to authorized personnel to meet the entity's commitments and system requirements as they relate to security and availability.
Staff training and awarenessEmployees and contractors with access to customer information are required to complete annual security and data protection awareness training.
SubcontractingPrior to onboarding new sub-processors, Metamoto conducts a review of the available security and privacy practices of the subcontractor. Once a review has been conducted, subject to the requirements set out in Section 3 of these terms, the necessary notifications and agreements will be then be updated/established.
Review and updateAll policies and procedures are reviewed and updated on an annual basis. Metamoto also implements technical continuous monitoring capabilities to ensure ongoing compliance to organizational security best practices.
Customer ResponsibilityCustomers are responsible for managing security not expressly included as part of Metamoto’s terms of service and outlined in this data protection agreement. These responsibilities include, but are not limited to:
- Limiting Metamoto’s access to customer information, applications, cloud infrastructure and network interfaces
- Protecting customer integrated network and service components against attacks and malicious use, including monitoring and securing its networks and computing equipment.
- Customer is responsible for ensuring that data is appropriately secured in storage
- The customer is responsible for managing the security and configurations of Metamoto orchestrated workloads, sandboxes, and utility servers.
- The customer is responsible for necessary risk analysis, data impact assessment, and notifications for any changes beyond the default Metamoto baseline