Data Processing Agreement
Data Processing Agreement

Data Processing Agreement

This Data Processing Addendum (the “DPA”) forms part of the End User License Agreement, or other similar ordering agreement, (“Agreement”) between Customer, as defined in the Agreement, and Lytx, Inc. (“Company”).  The parties agree to the terms and conditions set forth in this DPA, apply to the extent Company processes Personal Data on Customer’s behalf where Customer is the Data Controller. This DPA is intended to address provisions required by the General Data Protection Regulation (EU) 2016/679 (“GDPR”) in data processing agreements. Further, this DPA only applies to Personal Data transferred to Company from a Customer located in a Member State of the European Economic Area (“EEA”), and solely to the extent the transfer of such Personal Data is not subject to another cross-border adequacy mechanism (including Binding Corporate Rules for Processors).

  1. DEFINITIONS

Capitalised terms used but not defined in this DPA shall have the meanings set forth in the Agreement. For the purposes of this DPA:

  • 1.1. “Data Protection Legislation” means the General Data Protection Regulation 2016/679 and any applicable Member State data protection laws, regulations and secondary legislation, in each case as amended or updated from time to time.
  • 1.2. “Data Subject” means any individual about whom Personal Data may be Processed under this DPA.
  • 1.3. “Personal Data” means any Customer Data that is ‘personal data’, as defined by GDPR and the Standard Contractual Clauses, of EEA and UK Data Subjects.
  • 1.4. “Process” or “Processing” shall have the meaning defined by GDPR and the Standard Contractual Clauses.
  • 1.5. “Standard Contractual Clauses” means Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries (Controller to Processor), issued by the European Commission and attached to this DPA.
  1. PROCESSING OF PERSONAL DATA
    • 2.1. Company processes Personal Data on behalf of and as instructed by Customer, in accordance with Article 28(1) GDPR.
    • 2.2. The parties acknowledge that for the purposes of the Data Protection Legislation, Customer is the data controller and Company is the data processor. The types of Personal Data and categories of Data Subjects are set forth in Appendix 1 of the Standard Contractual Clauses. Customer is responsible for ensuring a valid legal basis for processing the Personal Data as well as any transfer of Personal Data to a third party. Customer shall ensure that it has met the requirements of the Data Protection Legislation for the lawful transfer of the Personal Data to Company for the purposes set forth in this DPA and the Agreement, and for the duration of the term of the Agreement.
    • 2.3. Any Processing of Personal Data shall be lawful and consistent with Company’s obligations under the Agreement. In particular, Company shall:
      • 2.3.1. Process Personal Data only as instructed by Customer in the Agreement or otherwise, unless Company is required to deviate from Customer’s instructions by applicable law;
      • 2.3.2. implement appropriate technical and organizational security measures to protect Personal Data against unlawful or accidental destruction or accidental loss, alteration, unauthorised disclosure or access, and against all other forms of unlawful processing; and
      • 2.3.3. not disclose Personal Data to any person (other than its Affiliates and/or subcontractors, as provided in the Agreement) unless Customer has given its prior consent to such disclosure.
    • 2.4. Customer has instructed or authorised the use of subprocessors to assist Company with respect to the performance of Company’s obligations under the Agreement, including without limitation the delivery of the Solution. Any such subprocessor will be permitted to Process Personal Data only to deliver the services Company has retained them to provide.  Upon written request (email sufficient) by Customer, Company will provide a list of all subprocessors involved with the Processing of Personal Data pursuant to this DPA. Prior to giving any subprocessor access to Personal Data, Company will ensure that the subprocessor has entered into a written agreement with Company requiring that the subprocessor abide by terms no less protective than those provided in this DPA.
    • 2.5. Upon termination or expiration of the Agreement for whatever reason, Company shall cease to process Personal Data and will either: (i) render all or part of Customer Data anonymous in such a manner that the data no longer constitutes Personal Data; or (iii) delete or render all or parts of the Personal Data unreadable. The obligations set out in this DPA shall remain in force notwithstanding termination or expiration of the Agreement for as long as Company has access to or is in possession of Personal Data.
  2. DATA TRANSFERS
    • 3.1. If Customer is established in the EEA and transfers Personal Data to Company, the Standard Contractual Clauses are incorporated by reference into this DPA and apply to that transfer.
    • 3.2. Customer and Company agree that Company may process Personal Data outside the EEA and the UK where the Data Protection Legislation requirements (including, where applicable, Articles 44 through 47 GDPR) are fulfilled, or an exception (including, where applicable, those listed in Article 49 GDPR) applies.
  3. RIGHTS OF DATA SUBJECTS
    • 4.1. Correction, Deletion or Restriction. Company will, at its election and as necessary to enable Customer to meet its obligations under applicable Data Protection Legislation, either (i) provide Customer the ability within the Solution to correct or delete Personal Data; or (ii) make such corrections, deletions, or restrictions on Customer’s behalf if such functionality is not available within the Solution.
    • 4.2. Access to Personal Data. To the extent Customer is unable to access a Data Subject’s Personal Data through the Solution, and where such access is necessary to enable Customer to meet its obligations under applicable Data Protection Legislation, Company will provide reasonable assistance to make such Personal Data available to Customer.
    • 4.3. Data Portability. During the term of the Agreement, Customer may extract Personal Data from the Solution in accordance with the documentation and the relevant provisions of the Agreement, including so that Customer can provide the Personal Data to an individual who makes a data portability request under the GDPR.
  4. Duration of Data Processing. The duration of data Processing will be for the term of the Agreement. For clarity, the DPA and Standard Contractual Clauses will automatically expire on the termination or expiry of the Agreement.
  5. Audit. Customer shall permit Customer to audit compliance by Company of its obligations under this DPA, and shall to that effect provide Customer, if so requested by Customer, upon reasonable notice, no more than once per year, and during business hours only, with reasonable access to its premises and systems used for processing, and other reasonable assistance in connection with the above, which shall not cause any disruptions to Company’s normal business operations. In no event will Customer be entitled to access or receive Company’s proprietary or confidential information, except to the extent strictly necessary to demonstrate compliance with this DPA. Customer shall carry the costs of such audit.
  6. Conflicts. To the extent there is any conflict between this DPA and the terms of Standard Contractual Clauses where applicable, the Standard Contractual Clauses prevail.

 

 

Standard Contractual Clauses (processors)

 

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Customer, as defined in the DPA,

(the data exporter)

And

Lytx, Inc.          

9785 Towne Centre Drive, San Diego, CA, 92121 USA     

Tel.: +1-858-430-4000   ; fax: :+1-858-430-4001 ; e-mail: notices@lytx.com       

(the data importer)

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

  • (a) ‘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;
  • (b) ‘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;
  • (d) ‘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;
  • (e) ‘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;
  • (f) ‘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.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  • (a) 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;
  • (b) 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;
  • (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  • (d) 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, 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, 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;
  • (e) that it will ensure compliance with the security measures;
  • (f) 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;
  • (g) 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;
  • (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, 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;
  • (i) 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
  • (j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

  • (a) 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;
  • (b) 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;
  • (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  • (d) that it will promptly notify the data exporter about:
  • (i) 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,
    • (ii) any accidental or unauthorised access, and
    • (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  • (e) 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;
  • (f) 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;
  • (g) 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 2 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;
  • (h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  • (i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  • (j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

  1. 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.
  2. 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.

  1. 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.

Clause 7

Mediation and jurisdiction

  1. 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:
  • (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  • (b) to refer the dispute to the courts in the Member State in which the data exporter is established.
  1. 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.

Clause 8

Cooperation with supervisory authorities

  1. 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.
  2. 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.
  3. 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).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation 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.

Clause 11

Subprocessing

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Clause 12

Obligation after the termination of personal data processing services

  1. 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.
  2. 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.

 

Appendix 1 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

The Customer, as defined in the Data Processing Agreement.  Customer has engaged the data importer to process data from equipment installed in vehices. or data otherwise uploaded to data importer via API, and such data will be stored and made available to Customer via data importer’s Solution.

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

Lytx, Inc. a vendor of the aformentioned Solution.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

data subjects include individuals about whom data originated in the EEA or UK is provided to data importer via the Solution, including without limitaion nature persons, who are predominately the drivers or passengers in the vehicles containing data exporter’s equipment, and persons who are employees or contractors of data exporter.

Categories of data

The personal data transferred concern the following categories of data (please specify):

The personal data may include first and last name, identification number, audio and video recordings which may capture physical characteristics, physical identity and/or physiological data, and other electronic data transferred in the context of the aformentioned services.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify): None.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

The processing activities may include recording, collection, organization, storage, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination or otherwise making available, alignment or combination, blocking, deidentifiation, anonimization, erasure and/or destruction.

 

 

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Data importer maintains administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data, as further specified herein, and as may be updated from time to time as necessary to update security practices. Following is a description of some of the core technical and organisational security measures implemented by data importer:

  1. Information Security Policies and Standards

The data importer maintains administrative, physical and technical safeguards to address the security, confidentiality and integrity of Personal Data transferred to it pursuant to the Standard Contactual Clauses.  These safeguards include:

Physical, logical and data access controls designed to restrict access to Personal Data to authorised individuals;

Audit trails, where appropriate, to document access and modification of Personal Data;

Controls that seek to ensure that Personal Data are Processed in accordance with the data exporter’s instructions, and protected against accidental loss.

  1. Physical Security

The data importer maintains commercially reasonable security systems at all data importer sites at which an information system that houses Personal Data is located.  The data importer reasonably restricts physical access to such sites.  Physical access controls have been implemented for all data centres.

  1. Organizational Security

Data importer has implemented security policies and procedures designed to prevent the reconstruction or retrieval of Personal Data following disposal. Personal Data security incidents are managed in accordance with written incident response procedures.  Where legally required, sensitive data transmitted by the data importer is encrypted while in transit.

  1. Network Security

The data importer maintains network security using commercially reasonable techniques, including firewalls, intrusion detection systems, access control lists and routing protocols.

  1. Access Control

The data importer maintains user administration procedures to: define user roles and their privileges, how access is granted, changed and terminated; address appropriate segregation of duties; and define the logging/monitoring requirements and mechanisms.  The data importer implements commercially reasonable physical and electronic security to create and protect passwords.

  1. Virus and Malware Controls

The data importer installs and maintains anti-virus and malware protection software.

  1. Personnel

The data importer implements a security awareness programme to train personnel about their security obligations.   

  1. Business Continuity

The data importer has implemented written disaster recovery and business resumption plans. Data importer reviews both business continuity plan and risk assessment regularly.