This Data Processing Amendment (this “DPA” or this “Amendment”), effective as of the date on which you electronically accept or otherwise agree or opt-in to this DPA, is entered into by and between Constella Intelligence, Inc. (“Constella”, “Processor”, “we”, or “us”) and the customer that electronically accepts or otherwise agrees or opts-in to this DPA (“Customer”, “Controller”, or “you”).
You have entered into a Master Subscription and Services Agreement with us (each, as amended from time to time, an “Agreement”). This DPA will amend the terms of the Agreement to reflect the parties’ rights and responsibilities with respect to the processing and security of Customer’s data under the Agreement. If you are accepting this DPA in your capacity as an employee, consultant or agent of Customer, you represent that you are an employee, consultant or agent of Customer, and that you have the authority to bind Customer (and, to the extent required under applicable Data Protection Laws (defined below), in the name and on behalf of its Affiliates (defined below), if any) to this DPA.
1. Definitions
1.1 “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
1.1 “Alternative Transfer Solution” means a solution, other than the Standard Contractual Clauses, that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, an approved code of conduct or an approved certification mechanism).
1.2 “Anonymous Data” means Personal Data that has been processed in such a manner that it can no longer be attributed to an identified or identifiable natural person.
1.3 “Authorized Employee” means an employee of Processor who has a need to know or otherwise access Personal Data to enable Processor to perform their obligations under this Amendment or the Agreement.
1.4 “Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Personal Data to enable Processor to perform its obligations under this Amendment or the Agreement, and who is either (1) listed in Exhibit B or (2) authorized by Controller to do so under Section 4.2 of this Amendment.
1.5 “Data Subject” means an identified or identifiable person to whom Personal Data relates.
1.6 “Instruction” means a direction, either in writing, in textual form (e.g. by e-mail) or by using a software or online tool, issued by Controller to Processor and directing Processor to Process Personal Data.
1.7 “Personal Data” means any information relating to Data Subject which is subject to Data Protection Laws (defined below) and which Processor Processes on behalf of Controller, other than Anonymous Data.
1.8 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored, or otherwise processed.
1.9 “Process” or “Processing” means any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
1.10 “Standard Contractual Clauses” means the standard data protection clauses for the transfer of Personal Data to processors established in countries that do not ensure an adequate level of data protection, under Decision 2010/87/EU, or other contractual terms as may from time to time be approved by the European Commission instead of those clauses, as described in Article 46 of the GDPR.
1.11 “Supervisory Authority” means an independent public authority which is established by a member state of the European Union, Iceland, Liechtenstein, or Norway.
2. Processing of Data
2.1 The rights and obligations of the Controller with respect to this Processing are described herein. Controller shall, in its use of the Services, at all times Process Personal Data, and provide instructions for the Processing of Personal Data, in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR” and together, “Data Protection Laws”)). Controller shall ensure that its instructions comply with all laws, rules and regulations applicable in relation to the Personal Data, and that the Processing of Personal Data in accordance with Controller’s instructions will not cause Processor to be in breach of the Data Protection Laws. Controller is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Processor by or on behalf of Controller, (ii) the means by which Controller acquired any such Personal Data, and (iii) the instructions it provides to Processor regarding the Processing of such Personal Data. Controller shall not provide or make available to Processor any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Processor from all claims and losses in connection therewith. This Amendment does not apply to Personal Data for which Processor is a controller.
2.2 Processor shall not Process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with the terms and conditions set forth in this Amendment or any other documented instructions provided by Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest and (iii) in violation of the GDPR. Controller hereby instructs Processor to Process Personal Data in accordance with the foregoing and as part of any Processing initiated by Controller in its use of the products or services described in the Agreement.
2.3 The subject matter, nature, purpose, and duration of this Processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this Amendment.
2.4 Following termination or expiration of the Agreement, at Controller’s choice, Processor shall return or delete the Personal Data, unless further storage of Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Processor shall take measures to block such Personal Data from any further Processing (except to the extent necessary for its continued hosting or Processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Processor to Controller only upon Controller’s request.
3. Authorized Employees
3.1 Processor shall take commercially reasonable steps to ensure the reliability and appropriate training of any Authorized Employee.
3.2 Processor shall ensure that all Authorized Employees are made aware of the confidential nature of Personal Data and have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their engagement with Processor, any Personal Data except in accordance with their obligations in connection with the Services.
3.3 Processor shall take commercially reasonable steps to limit access to Personal Data to only Authorized Employees.
4. Authorized Sub-Processors
4.1 Controller acknowledges and agrees that Processor may (1) engage its affiliates and the Authorized Sub-Processors listed in Exhibit B to this Amendment to access and Process Personal Data in connection with its performance under the Agreement, and (2) from time to time engage additional third parties for the purpose of its performance under the Agreement, including without limitation the Processing of Personal Data. By way of this Amendment, Controller provides general written authorization to Processor to engage sub-processors as necessary to perform under the Agreement.
4.2 A list of Processor’s current Authorized Sub-Processors (the “List”) will be made available to Controller, either attached hereto, at a link provided to Controller, via email or through another means made available to Controller. Such List may be updated by Processor from time to time. The List may provide a mechanism to subscribe to notifications of new Authorized Sub-Processors and Controller agrees to subscribe to such notifications where available. At least ten (10) days before enabling any third party other than Authorized Sub-Processors to access or participate in the Processing of Personal Data, Processor will add such third party to the List. Controller may reasonably object to such an engagement on legitimate grounds by informing Processor in writing within ten (10) days of receipt of the aforementioned notice by Processor. Controller acknowledges that certain sub-processors are essential to providing the products and services set forth in the Agreement and that objecting to the use of a sub-processor may prevent Processor from offering the Services to Controller.
4.3 If Controller reasonably objects to an engagement in accordance with Section 4.2, and Processor cannot provide a commercially reasonable alternative within a reasonable period of time, Processor may terminate this Amendment. Termination shall not relieve Controller of any fees owed to Processor under the Agreement.
4.4 If Controller does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Processor, that third party will be deemed an Authorized Sub-Processor for the purposes of this Amendment.
4.5 Processor will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Processor under this Amendment with respect to the protection of Personal Data. In case an Authorized Sub-Processors fails to fulfill its data protection obligations under such written agreement with Processor, Processor will remain liable to Controller for the performance of the Authorized Sub-Processor’s obligations under such agreement.
4.6 If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Controller’s prior written consent to the subcontracting by Processor of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Processor to Controller pursuant to Clause 5(j) of the Standard Contractual Clauses may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Processor beforehand, and that such copies will be provided by the Processor only upon request by Controller.
5. Security of Personal Data. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Processing Personal Data.
6. Transfers of Personal Data
6.1 You agree that we may, subject to Section 6.2, store and process Personal Data in the United States and any other country in which we or our Authorized Sub-Processors maintain facilities.
6.2 If the storage and/or processing of Personal Data as described in Section 6.1 involves transfers of Personal Data out of the EEA and European Data Protection Legislation applies to the transfers of such data (collectively, “Transferred Personal Data”), we will, at our sole discretion, either (i) ensure that we (as the data importer) have entered into Standard Contractual Clauses with you (as the data exporter), and that the transfers are made in accordance with the Standard Contractual Clauses; or (ii) ensure that the transfers are made in accordance with an Alternative Transfer Solution. With respect to Transferred Personal Data, you agree that if we reasonably require you to enter into Standard Contractual Clauses with respect to such transfers as required by applicable Data Protection Laws, you will promptly do so; similarly, if we reasonably require you to use an Alternative Transfer Solution and we request that you take any action (including, without limitation, execution of documents) required to give full effect to that solution, you will promptly do so.
7. Rights of Data Subjects
7.1 Processor shall, to the extent permitted by law, notify Controller upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Processor receives a Data Subject Request in relation to Controller’s data, Processor will advise the Data Subject to submit their request to Controller and Controller will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Controller is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of Processing, or withdrawal of consent to Processing of any Personal Data are communicated to Processor, and for ensuring that a record of consent to Processing is maintained with respect to each Data Subject.
7.2 Processor shall, at the request of the Controller, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Controller in complying with Controller’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Controller is itself unable to respond without Processor’s assistance and (ii) Processor is able to do so in accordance with all applicable laws, rules, and regulations. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8. Actions and Access Requests
8.1 Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance where necessary for Controller to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Controller does not otherwise have access to the relevant information. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8.2 Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance with respect to Controller’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8.3 Processor shall maintain records sufficient to demonstrate its compliance with its obligations under this Amendment, and retain such records for a period of three (3) years after the termination of the Agreement. Controller shall, with reasonable notice to Processor, have the right to review, audit and copy such records at Processor’s offices during regular business hours.
8.4 Upon Controller’s request, Processor shall, no more than once per calendar year, either (i) make available for Controller’s review copies of certifications or reports demonstrating Processor’s compliance with prevailing data security standards applicable to the Processing of Controller’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Controller or its authorized representative, upon reasonable notice and at a mutually agreeable date and time, to conduct an audit or inspection of Processor’s data security infrastructure and procedures that is sufficient to demonstrate Processor’s compliance with its obligations under this Amendment, provided that Controller shall provide reasonable prior notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Processor’s business. Controller shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Processor for any time expended for on-site audits. If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with this Section 8.4.
8.5 Processor shall immediately notify Controller if an instruction, in the Processor’s opinion, infringes the Data Protection Laws or the instructions or decisions of the Supervisory Authority.
8.6 In the event of a Personal Data Breach, Processor shall, without undue delay, inform Controller of the Personal Data Breach and take such steps as Processor in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Processor’s reasonable control).
8.7 In the event of a Personal Data Breach, Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance necessary for Controller to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
8.8 The obligations described in Sections 8.5 and 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Controller. Processor’s obligation to report or respond to a Personal Data Breach under Sections 8.5 and 8.6 will not be construed as an acknowledgement by Processor of any fault or liability with respect to the Personal Data Breach.
9. Limitation of Liability. The total liability of each of Controller and Processor (and their respective employees, directors, officers, affiliates, successors, and assigns), arising out of or related to this Amendment, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement.
10. Processor’s Role as a Data Controller. The parties acknowledge and agree that to the extent Processor processes Personal Data in connection with the Agreement to: (i) monitor, prevent and detect fraud, and to prevent harm to Controller, Processor and the Processor’s affiliates, and to third parties; (ii) comply with legal or regulatory obligations applicable to the processing and retention of Personal Data to which Processor is subject; (iii) analyze, develop and improve Processor’s products and services; or (iv) provide the Processor products and services to Processor users, Processor is acting as a data controller with respect to the Processing of such Personal Data it receives from or through Controller.
11. Signatories’ Data. Any personal data contained in the Agreement or in this Amendment itself (addresses, email, etc.) will be processed by the parties, as independent Data Controllers, in order to comply with the purpose of the Agreement and the Amendment, and will be kept for as long as the relationship is maintained or for as long as necessary in order to comply with applicable legal obligations. Data subjects may exercise their data protection rights by means of written notice to each party to the address provided in the heading of the Agreement. Constella has appointed a Data Protection Officer who may be contacted at the following email address: privacy@constellaintelligence.com. Data subjects may file a complaint with the competent authority.
12. Controlling Language. The original version of this Amendment is drawn up in English, and the English version of this Amendment shall prevail in the event of any conflict with any version of this Amendment or portion thereof that has been translated into another language (including Spanish).
13. Governing Law and Jurisdiction. This Amendment will be governed by and construed in accordance with the laws of the State of California, without regard to that State’s conflict of law principles. Any legal action or proceeding arising under, related to or connected with this Amendment will be brought exclusively in the federal (if they have jurisdiction) or state courts located in Santa Clara County, California, and the parties irrevocably consent to the personal jurisdiction and venue of such court(s). The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Amendment. If a party initiates any proceeding regarding this Amendment, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs.
EXHIBIT A
Details of Processing
Nature and Purpose of Processing: Constella’s performance under the Agreement with Customer, and related technical support.
Duration of Processing: Throughout the term of the Agreement.
Categories of Data Subjects:
Categories of Data Subjects might include:
Type of Personal Data:
Personal Data submitted to, stored on, or sent via the Constella products and services may include, without limitation, the following categories of data: IP addresses, browser agents, email addresses, usernames, full names, browser and operating system identifiers, and any other personal data that Customer chooses to send to Constella during the course of our provision of the Constella products and services, and related technical support.
EXHIBIT B
Authorized Sub-Processors
Controller acknowledges and agrees that the following entities shall be deemed Authorized Sub-Processors that may Process Personal Data pursuant to this Amendment:
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