This Data Processing Addendum (“DPA“) forms part of, and is subject to, the Subscription Agreement, Terms of Service, Software License Agreement, End User Agreement, Order Form or other written or electronic terms or agreement between the AtScale, Inc. (“AtScale”) and the legal entity defined as ‘Customer’ thereunder (collectively, for purposes of this DPA, “Customer”, and together with AtScale, the “Parties” and each a “Party” (such agreement, the “Agreement”)) for the AtScale Offerings. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
1. Definitions.
“Affiliate” means, if not specified on an Order Form or defined elsewhere in the Agreement, an entity controlling, controlled by or under common control with a Party, where “control” is the ability to manage and direct the affairs of the entity through ownership of a majority of the voting stock of the entity or by some other means.
“AtScale Offering(s)” means the Software and other AtScale products and services as set forth in the Order Form or 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 AtScale 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, organisation, 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) AtScale’s provision of the AtScale Offerings as described in the applicable Order Form or Agreement, including Processing initiated by Customer users in their use of the AtScale 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.
“Software” means the AtScale software as set forth in the Order Form or Agreement.
“Sub-processor” means any other Data Processors engaged by AtScale to Process Customer Personal Data.
2. Scope and Applicability of this DPA. This DPA applies where and only to the extent that AtScale Processes Customer Personal Data on behalf of Customer as Data Processor in the course of providing the AtScale Offerings.
3. Roles and Scope of Processing.
3.1. Role of the Parties. As between AtScale and Customer, AtScale 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, AtScale 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. AtScale 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 AtScale 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 AtScale. AtScale shall promptly notify Customer if, in AtScale’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. AtScale’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 AtScale, 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 AtScale. If an Authorized Affiliate seeks to assert a legal demand, action, suit, claim, proceeding or other forms of complaints or proceedings against AtScale (“Authorized Affiliate Claim”): (i) Customer must bring such Authorized Affiliate Claim directly against AtScale 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 Software 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 AtScale 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 Software.
3.5. Details of Data Processing.
(a) Subject Matter: The subject matter of the Processing under this DPA is the Customer Personal Data and relates to users, stores and mission content.
(b) Frequency and duration: Notwithstanding expiration or termination of the Agreement, AtScale will Process the Customer Personal Data continuously and until deletion of all Customer Personal Data as described in this DPA.
(c) Purpose: AtScale will Process the Customer Personal Data only for the Purposes, as described in this DPA.
(d) Nature of the Processing: AtScale 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 Software. Upon termination or expiration of the Agreement, to the extent applicable, Customer may retrieve or delete Customer Personal Data as described in the Agreement. To the extent applicable, any Customer Personal Data not deleted by Customer shall be deleted by AtScale 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 full name, email address, phone number, user names combined with passwords, location information, cookies and online identifiers.
(h) Special Categories of Personal Data: Use of the AtScale Offerings will not require, and Customer should not 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.
4. Sub-Processing.
4.1. Authorized Sub-Processors. Customer provides AtScale with a general authorization to engage Sub-processors, subject to Section 4.3 (Changes to Sub-processors), as well as AtScale’s current Sub-processors listed in Appendix 1 as of the effective date of this DPA.
4.2. Sub-processor Obligations. AtScale shall: (i) enter into a written agreement with each Sub-processor imposing data protection obligations no less protective of Customer Personal Data as AtScale’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, AtScale 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. AtScale shall provide notification to Customer at least twenty-eight (28) days in advance of allowing any new Sub-processor to Process Customer Personal Data (the “Objection Period”). During the Objection Period, objections (if any) to AtScale’s appointment of the new Sub-processor must be provided to AtScale 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 AtScale that the new Sub-processor is unable to Process Customer Personal Data in compliance with the terms of this DPA and AtScale 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 AtScale without the use of the new Sub-processor by providing advance written notice to AtScale of such termination. AtScale 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. AtScale 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.
5.2. Confidentiality of Processing. AtScale shall ensure that any person who is authorized by AtScale 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 AtScale. AtScale 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 Software 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, AtScale shall provide Customer, and/or its appropriately qualified third-party representative (collectively, the “Auditor”), access to reasonably requested documentation evidencing AtScale’s compliance with its obligations under this DPA in the form of relevant audits or certifications such as, for example, (i) ISO 27001, 27017, & 27018, HITRUST CSF, and PCI-DSS third-party certifications, (ii) SOC 2 Type II audit reports, SOC 1 Type II audit reports and (iii) AtScale’s most recently completed industry standard security questionnaire, such as a SIG or CAIQ (collectively, “Reports”).
6.2. Customer may also send a written request for an audit of AtScale’s applicable controls, including inspection of its facilities. Following receipt by AtScale of such request, AtScale 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. AtScale may charge a fee (rates shall be reasonable, taking into account the resources expended by AtScale) for any such audit. The Reports, audit, and any information arising therefrom shall be considered AtScale’s Confidential Information and may only be shared with a third-party (including a Third-Party Controller) with AtScale’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 AtScale prior to any review of Reports or an audit of AtScale, and AtScale may object in writing to such Auditor, if in AtScale’s reasonable opinion, the Auditor is not suitably qualified or is a direct competitor of AtScale. Any such objection by AtScale 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. AtScale will only host and Process Customer Personal Data in the region(s) offered by AtScale and applicable to the Customer’s use of the Software as specified on an Order Form (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 Software or a separate Software). Once Customer has selected a Hosting Region, AtScale will not Process Customer Personal Data from outside the Hosting Region except 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 AtScale and/or contract clauses for Processing of Customer Personal Data by AtScale (collectively, a “Transfer Mechanism”), AtScale shall make such specific Transfer Mechanism available (to the extent generally supported by AtScale) such as the Standard Contractual Clauses approved pursuant to Commission Decision (EU) 2021/91 of 4 June 2021 and the International Data Transfer Addendum issued by the Information Commissioner’s Office under s.119(A) of the UK Data Protection Act 2018. 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 AtScale (including where no such transfer occurs), or (ii) Processing by AtScale of Customer Personal Data. If a 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) below, AtScale may only remove an applicable Transfer Mechanism if the Transfer Mechanism has ceased being valid under the Data Protection Law or AtScale is offering an alternative, then-currently valid Transfer Mechanism.
7.2.2. Updates Regarding Transfer Mechanism. AtScale shall notify Customer of changes to its Transfer Mechanisms by notifying Customer and/or posting a summary and date of the relevant changes.
8. Security Incident Response.
8.1. Security Incident Reporting. If AtScale becomes aware of a Security Incident, AtScale shall notify Customer without undue delay, and in any case, where feasible, notify Customer within seventy-two (72) hours after becoming aware. AtScale’s notification shall be sent to the email registered by Customer within the Software for such purposes, and where no such email is registered, Customer acknowledges that the means of notification shall be at AtScale’s reasonable discretion and AtScale’s ability to timely notify shall be negatively impacted. AtScale shall promptly take reasonable steps to contain, investigate, and mitigate any Security Incident.
8.2. Security Incident Communications. AtScale 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 AtScale to mitigate or contain the Security Incident, the status of AtScale’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 AtScale personnel may not have visibility to the content of Customer Personal Data, it is unlikely AtScale 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 AtScale with Customer in connection with a Security Incident shall not be construed as an acknowledgment by AtScale of any fault or liability with respect to the Security Incident.
9. Cooperation.
9.1. Data Subject Requests. AtScale shall promptly notify Customer if AtScale 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 Software 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 Software using such controls or otherwise, AtScale shall (upon Customer’s written request and taking into account the nature of AtScale’s Processing) provide commercially reasonable cooperation to assist Customer in responding to Data Subject Requests.
9.2. Data Protection Impact Assessments. AtScale shall provide reasonably requested information regarding the Software 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 AtScale 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 AtScale shall attempt to redirect the Third-Party Demand to Customer. Customer agrees that AtScale can provide information to such third-party to the extent reasonably necessary to redirect the Third-Party Demand to Customer. If AtScale cannot redirect the Third-Party Demand to Customer, then AtScale 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 AtScale’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 AtScale and Customer may have previously entered into in connection with the Software. AtScale may update this DPA from time to time upon notice to Customer; 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.
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.
Appendix 1 – Subprocessors
| Name of the third party | Type of Service | Term | Location |
| ngrok, Inc. | Network connectivity platform | Continuous | U.S. |