Data Processing Addendum

Last updated: 4/25/2024 | Previous Versions

This Data Processing Addendum (“DPA") forms part of, and is subject to, the Master Subscription Agreement, the Validatar Cloud Terms of Service, the Validatar Cloud Evaluation Terms of Service or the Validatar Server Terms of Service (collectively the “Agreement”) between Validatar, LLC (“Validatar”) and the legal entity defined as ‘Customer’ thereunder together with all Customer Affiliates who are signatories to an Order Form for their own Service Account or Server Software license pursuant to such agreement (collectively, for purposes of this DPA, “Customer”, and together with Validatar, the “Parties” and each a “Party”). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

1. Definitions.

“Account” means Customer’s account in the Service in which Customer stores and processes Customer Data.

“Affiliate” has the meaning set forth in the Agreement.

“Authorized Affiliate” shall mean a Customer Affiliate who has not signed an Order Form pursuant to the Agreement but is either a Data Controller or Data Processor for the Customer Personal Data processed by Validatar pursuant to the Agreement, for so long as such entity remains a Customer Affiliate.

“California Consumer Privacy Act” or “CCPA” means the California Consumer Privacy Act of 2018, as may be amended from time to time.

“Customer Data” has the meaning set forth in the Agreement.

“Customer Personal Data” means any Customer Data that is Personal Data.

“Data Controller” means an entity that determines the purposes and means of the Processing of Personal Data.

“Data Processor” means an entity that Processes Personal Data on behalf of a Data Controller.

“Data Protection Laws” means all data protection and privacy laws applicable to the respective party in its role in the Processing of Personal Data under the Agreement, including, where applicable, EU & UK Data Protection Law and the CCPA.

“Data Subject” means the identified or identifiable natural person to whom Customer Personal Data relates.

“EU & UK Data Protection Law” means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) the GDPR as it forms part of United Kingdom law pursuant to Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act 2018.

“Personal Data” means any information, including opinions, relating to an identified or identifiable natural person and includes similarly defined terms in Data Protection Laws, including, but not limited to, the definition of “personal information” in the CCPA.

“Processing” shall mean any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, and “Process”, “Processes” and “Processed” will be interpreted accordingly.

“Purposes” shall mean (i) Validatar’s provision of the Validatar Offerings as described in the Agreement, including Processing initiated by Users in their use of the Validatar Offerings; and (ii) further documented, reasonable instructions from Customer agreed upon by the Parties.

“Security Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data.

“Server Software” has the meaning set forth in the Agreement.

“Service” has the meaning set forth in the Agreement.

“Validatar Offering(s)” has the meaning set forth in the Agreement.1

“Sub-processor” means any other Data Processors engaged by Validatar to Process Customer Personal Data.

2. Scope and Applicability of this DPA. This DPA applies where and only to the extent that Validatar Processes Customer Personal Data on behalf of Customer as Data Processor in the course of providing the Validatar Offerings. Validatar may provide Server Software to Customer for installed use in Customer managed environment. When Customer uses Server Software to process data, Validatar is not considered a Data Processor and this DPA does not apply.

3. Roles and Scope of Processing.

3.1. Role of the Parties. As between Validatar and Customer, Validatar shall Process Customer Personal Data only as a Data Processor (or sub-processor) acting on behalf of Customer and, with respect to CCPA, as a “service provider” as defined therein, in each case regardless of whether Customer acts as a Data Controller or as a Data Processor on behalf of a third-party Data Controller (such third-party, the “Third-Party Controller”) with respect to Customer Personal Data. To the extent any Usage Data (as defined in the Agreement) is considered Personal Data under applicable Data Protection Laws, Validatar is the Data Controller of such data and shall Process such data in accordance with the Agreement and applicable Data Protection Laws.

3.2. Customer Instructions. Validatar will Process Customer Personal Data only for the Purposes. Customer shall ensure its Processing instructions are lawful and that the Processing of Customer Personal Data in accordance with such instructions will not violate applicable Data Protection Laws. The Parties agree that the Agreement (including this DPA) sets out the exclusive and final instructions to Validatar for all Processing of Customer Personal Data, and (if applicable) include and are consistent with all instructions from Third-Party Controllers. Any additional requested instructions require the prior written agreement of Validatar. Validatar shall promptly notify Customer if, in Validatar’s opinion, such instruction violates EU & UK Data Protection Law. Where applicable, Customer shall be responsible for any communications, notifications, assistance and/or authorizations that may be required in connection with a Third- Party Controller.

3.3. Customer Affiliates. Validatar’s obligations set forth in this DPA also extend to Authorized Affiliates, subject to the following conditions:

(a) Customer must exclusively communicate any additional Processing instructions requested pursuant to 3.2 directly to Validatar, including instructions from its Authorized Affiliates;

(b) Customer shall be responsible for Authorized Affiliates’ compliance with this DPA and all acts and/or omissions by an Authorized Affiliate with respect to Customer’s obligations in this DPA shall be considered the acts and/or omissions of Customer; and

(c) Authorized Affiliates shall not bring a claim directly against Validatar. If an Authorized Affiliate seeks to assert a legal demand, action, suit, claim, proceeding or other forms of complaints or proceedings against Validatar (“Authorized Affiliate Claim”): (i) Customer must bring such Authorized Affiliate Claim directly against Validatar on behalf of such Authorized Affiliate, unless Data Protection Laws require the Authorized Affiliate be a party to such claim; and (ii) all Authorized Affiliate Claims shall be considered claims made by Customer and shall be subject to any liability restrictions set forth in the Agreement, including, but not limited to, any aggregate limitation of liability.

3.4. Processing of Personal Data. Each Party will comply with its respective obligations under Data Protection Laws. Customer agrees (i) it will use the Service in a manner designed to ensure a level of security appropriate to the particular content of the Customer Personal Data, such as pseudonymizing and backing-up Customer Personal Data; and (ii) it has obtained all consents, permissions and/or rights necessary under Data Protection Laws for Validatar to lawfully Process Customer Personal Data for the Purposes, including, without limitation, Customer’s sharing and/or receiving of Customer Personal Data with third-parties via the Service.

3.5. Details of Data Processing.

(a) Subject Matter: The subject matter of the Processing under this DPA is the Customer Personal Data.

(b) Frequency and duration: Notwithstanding expiration or termination of the Agreement, Validatar will Process the Customer Personal Data continuously and until deletion of all Customer Personal Data as described in this DPA.

(c) Purpose: Validatar will Process the Customer Personal Data only for the Purposes, as described in this DPA.

(d) Nature of the Processing: Validatar will perform Processing as needed for the Purposes, and to comply with Customer’s Processing instructions as provided in accordance with the Agreement and this DPA.

(e) Retention Period. The period for which Customer Personal Data will be retained and the criteria used to determine that period is determined by Customer during the term of the Agreement via Customer’s use and configuration of the Service. Upon termination or expiration of the Agreement, Customer may retrieve or delete Customer Personal Data as described in the Agreement. Any Customer Personal Data not deleted by Customer shall be deleted by Validatar promptly upon the later of (i) expiration or termination of the Agreement and (ii) expiration of any post-termination “retrieval period” described in the Agreement.

(f) Categories of Data Subjects: The categories of Data Subjects to which Customer Personal Data relate are determined and controlled by Customer in its sole discretion, and may include, but are not limited to:

1. Prospects, customers, business partners and vendors of Customer (who are natural persons);
2. Employees or contact persons of Customer’s prospects, customers, business partners and vendors; and/or
3. Employees, agents, advisors, and freelancers of Customer (who are natural persons).

(g) Categories of Personal Data: The types of Customer Personal Data are determined and controlled by Customer in its sole discretion, and may include, but are not limited to:

1. Identification and contact data (name, address, title, contact details);
2. Financial information (credit card details, account details, payment information);
3. Employment details (employer, job title, geographic location, area of responsibility); and/or
4. IT information (IP addresses, cookies data, location data).

(h) Special Categories of Personal Data (if applicable): Subject to any applicable restrictions and/or conditions in the Agreement or Documentation, Customer may also include ‘special categories of personal data’ or similarly sensitive Personal Data (as described or defined in Data Protection Laws) in Customer Personal Data, the extent of which is determined and controlled by Customer in its discretion, and which may include, but is not limited to Customer Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data Processed for the purposes of uniquely identifying a natural person, data concerning health and/or data concerning a natural person’s sex life or sexual orientation.

4. Sub-Processing.

4.1. Authorized Sub-Processors. Customer provides Validatar with a general authorization to engage Sub-processors, subject to Section 4.3 (Changes to Sub-processors), as well as Validatar’s current Sub-processors listed at https://www.validatar.com/legal/sub-processors (“Sub-processor Site”) as of the effective date of this DPA.

4.2. Sub-processor Obligations. Validatar shall: (i) enter into a written agreement with each Sub-processor imposing data protection obligations no less protective of Customer Personal Data as Validatar’s obligations under this DPA to the extent applicable to the services provided by the Sub-processor; and (ii) remain liable for each Sub-processor’s compliance with the obligations under this DPA. Upon written request, and subject to any confidentiality restrictions, Validatar shall provide Customer all relevant information it reasonably can in connection with its applicable Sub-processor agreements where required to satisfy Customer’s obligations under Data Protection Laws.

4.3. Changes to Sub-processors. Validatar shall make available on its Sub-processor Site a mechanism to subscribe to notifications of new Sub-processors. Validatar shall provide such notification to those emails that have subscribed at least twenty-eight (28) days in advance of allowing the new Sub-processor to Process Customer Personal Data (the “Objection Period”). During the Objection Period, objections (if any) to Validatar’s appointment of the new Sub- processor must be provided to Validatar in writing and based on reasonable grounds. In such event, the Parties will discuss those objections in good faith with a view to achieving resolution. If it can be reasonably demonstrated to Validatar that the new Sub-processor is unable to Process Customer Personal Data in compliance with the terms of this DPA and Validatar cannot provide an alternative Sub-processor, or the Parties are not otherwise able to achieve resolution as provided in the preceding sentence, Customer, as its sole and exclusive remedy, may terminate the Order Form(s) with respect to only those aspects which cannot be provided by Validatar without the use of the new Sub-processor by providing advance written notice to Validatar of such termination. Validatar will refund Customer any prepaid unused fees of such Order Form(s) following the effective date of such termination.

5. Security.

5.1. Security Measures. Validatar shall implement and maintain appropriate technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data as described in Validatar’s Security Addendum found at https://www.validatar.com/legal/security-addendum (“Security Addendum”). Validatar may review and update its Security Addendum from time to time, provided that any such updates shall not materially diminish the overall security of the Service or Customer Personal Data.

5.2. Confidentiality of Processing. Validatar shall ensure that any person who is authorized by Validatar to Process Customer Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

5.3. No Assessment of Customer Personal Data by Validatar. Validatar shall have no obligation to assess the contents or accuracy of Customer Personal Data, including to identify information subject to any specific legal, regulatory, or other requirement. Customer is responsible for making an independent determination as to whether its use of the Service will meet Customer’s requirements and legal obligations under Data Protection Laws.

6. Customer Audit Rights.

6.1. Upon written request and at no additional cost to Customer, Validatar shall provide Customer, and/or its appropriately qualified third-party representative (collectively, the “Auditor”), access to reasonably requested documentation evidencing Validatar’s compliance with its obligations under this DPA in the form of the relevant audits or certifications listed in the Security Addendum, such as Validatar’s SOC 2 Type II audit reports (collectively, “Reports”).

6.2. Customer may also send a written request for an audit of Validatar’s applicable controls, including inspection of its facilities. Following receipt by Validatar of such request, Validatar and Customer shall mutually agree in advance on the details of the audit, including the reasonable start date, scope and duration of, and security and confidentiality controls applicable to, any such audit. Validatar may charge a fee (rates shall be reasonable, taking into account the resources expended by Validatar) for any such audit. The Reports, audit, and any information arising therefrom shall be considered Validatar’s Confidential Information and may only be shared with a third-party (including a Third-Party Controller) with Validatar’s prior written agreement.

6.3. Where the Auditor is a third-party, the Auditor may be required to execute a separate confidentiality agreement with Validatar prior to any review of Reports or an audit of Validatar, and Validatar may object in writing to such Auditor, if in Validatar’s reasonable opinion, the Auditor is not suitably qualified or is a direct competitor of Validatar. Any such objection by Validatar will require Customer to either appoint another Auditor or conduct the audit itself. Any expenses incurred by an Auditor in connection with any review of Reports or an audit shall be borne exclusively by the Auditor. For clarity, the exercise of audit rights under a Transfer Mechanism shall be as described in this Section 6 (Customer Audit Rights) and Customer agrees those rights are carried out on behalf of Customer and all relevant Third-Party Controllers, subject to the confidentiality and non-use restrictions of the Agreement.

7. Data Transfers.

7.1. Hosting and Processing Locations. Validatar will only host Customer Personal Data in the region(s) offered by Validatar and selected by Customer on an Order Form or as Customer otherwise configures via the Service (the “Hosting Region”). Customer is solely responsible for the regions from which its Users access the Customer Personal Data, for any transfer or sharing of Customer Personal Data by Customer or its Users and for any subsequent designation of other Hosting Regions (either for the same Account, a different Account, or a separate Service). Once Customer has selected a Hosting Region, Validatar will not Process Customer Personal Data from outside the Hosting Region except as reasonably necessary to provide the Validatar Offerings procured by Customer, or as necessary to comply with the law or binding order of a governmental body.

7.2. Transfer Mechanisms.

7.2.1. Transfer Mechanisms and/or Contract Clauses Prescribed by Data Protection Laws. If Data Protection Laws have prescribed specific mechanisms for the transfer of Customer Personal Data to Validatar and/or contract clauses for Processing of Customer Personal Data by Validatar (collectively, a “Transfer Mechanism”), Validatar shall make such specific Transfer Mechanism available (to the extent generally supported by Validatar) at https://www.validatar.com/legal/us-state-specific-contract-clauses (the “Transfer Mechanism Site”). A Transfer Mechanism shall not apply and shall not be incorporated into this DPA if it is not applicable to (i) transfers from Customer to Validatar (including where no such transfer occurs), or (ii) Processing by Validatar of Customer Personal Data. If a listed Transfer Mechanism is, or becomes applicable under Data Protection Laws, it shall be deemed to be signed by the Parties and is incorporated into this DPA. Subject to Section 7.2.2 (Updates Regarding Transfer Mechanism Site) below, Validatar may only remove an applicable Transfer Mechanism if the Transfer Mechanism has ceased being valid under the Data Protection Law or Validatar is offering an alternative, then-currently valid Transfer Mechanism.

7.2.2. Updates Regarding Transfer Mechanism Site. Validatar shall notify Customer of changes to its Transfer Mechanisms by updating the Transfer Mechanism Site and posting a summary and date of the relevant changes.

8. Security Incident Response.

8.1. Security Incident Reporting. If Validatar becomes aware of a Security Incident, Validatar shall notify Customer without undue delay, and in any case, where feasible, notify Customer within seventy-two (72) hours after becoming aware. Validatar’s notification shall be sent to the email registered by Customer within the Service for such purposes, and where no such email is registered, Customer acknowledges that the means of notification shall be at Validatar’s reasonable discretion and Validatar’s ability to timely notify shall be negatively impacted. Validatar shall promptly take reasonable steps to contain, investigate, and mitigate any Security Incident.

8.2. Security Incident Communications. Validatar shall provide Customer timely information about the Security Incident, including, but not limited to, the nature and consequences of the Security Incident, the measures taken and/or proposed by Validatar to mitigate or contain the Security Incident, the status of Validatar’s investigation, a contact point from which additional information may be obtained, and the categories and approximate number of data records concerned. Notwithstanding the foregoing, Customer acknowledges that because Validatar personnel may not have visibility to the content of Customer Personal Data, it is unlikely Validatar can provide information as to the particular nature of the Customer Personal Data, or where applicable, the identities, number or categories of affected Data Subjects. Communications by or on behalf of Validatar with Customer in connection with a Security Incident shall not be construed as an acknowledgment by Validatar of any fault or liability with respect to the Security Incident.

9. Cooperation.

9.1. Data Subject Requests. Validatar shall promptly notify Customer if Validatar receives a request from a Data Subject that identifies Customer Personal Data or otherwise identifies Customer, including where the Data Subject seeks to exercise any of its rights under applicable Data Protection Laws (collectively, “Data Subject Request”). The Service provides Customer with a number of controls that Customer may use to assist it in responding to Data Subject Requests and, subject to the next sentence, Customer will be responsible for responding to any such Data Subject Requests. To the extent Customer is unable to access the relevant Customer Personal Data within the Service using such controls or otherwise, Validatar shall (upon Customer’s written request and taking into account the nature of Validatar’s Processing) provide commercially reasonable cooperation to assist Customer in responding to Data Subject Requests.

9.2. Data Protection Impact Assessments. Validatar shall provide reasonably requested information regarding the Service to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws, so long as Customer does not otherwise have access to the relevant information.

9.3. Government & Law Enforcement Inquiries. If Validatar receives a demand to retain, disclose, or otherwise Process Customer Personal Data from law enforcement or any other government and/or public authority (“Third-Party Demand”), then Validatar shall attempt to redirect the Third-Party Demand to Customer. Customer agrees that Validatar can provide information to such third-party to the extent reasonably necessary to redirect the Third-Party Demand to Customer. If Validatar cannot redirect the Third-Party Demand to Customer, then Validatar shall, to the extent legally permitted to do so, provide Customer reasonable notice of the Third-Party Demand as promptly as feasible under the circumstances to allow Customer to seek a protective order or other appropriate remedy. This section does not diminish Validatar’s obligations under any applicable Transfer Mechanisms with respect to access by public authorities.

10. Relationship with the Agreement.

10.1. The Parties agree that this DPA shall replace and supersede any existing data processing addendum, attachment, exhibit or standard contractual clauses that Validatar and Customer may have previously entered into in connection with the Service. Validatar may update this DPA from time to time, with such updated version posted to https://www.validatar.com/legal, or a successor website designated by Validatar; provided, however, that no such update shall materially diminish the privacy or security of Customer Personal Data.

10.2. Except as provided by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict in connection with the Processing of Customer Personal Data. Notwithstanding the foregoing, and solely to the extent applicable to any Customer Personal Data comprised of patient, medical or other protected health information regulated by HIPAA, if there is any conflict between this DPA and a business associate agreement between Customer and Validatar, then the business associate agreement shall prevail solely with respect to such Customer Personal Data.

10.3. Notwithstanding anything to the contrary in the Agreement or this DPA, each Party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or relating to this DPA, the Transfer Mechanisms, and any other data protection agreements in connection with the Agreement (if any), shall be subject to any aggregate limitations on liability set out in the Agreement. Without limiting the Parties’ obligations under the Agreement, each Party agrees that any regulatory penalties incurred by one Party (the “Incurring Party”) in relation to the Customer Personal Data that arise as a result of, or in connection with, the other Party’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce the Incurring Party’s liability under the Agreement as if it were liability to the other Party under the Agreement.

10.4. In no event shall this DPA benefit or create any right or cause of action on behalf of a third party (including a Third-Party Controller), but without prejudice to the rights or remedies available to Data Subjects under Data Protection Laws or this DPA (including the Transfer Mechanisms).

10.5. This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement.