This Data Protection Agreement (“Agreement”) is entered into by and between Correlated Labs Inc., a Delaware corporation (“Correlated Labs”), and Customer effective as of the later date of each party’s signature below. This Agreement applies to Correlated Labs’s Processing of Customer Personal Data under the Master Services Agreement executed between Correlated Labs and Customer for Correlated Labs’s provision of the Services (the “MSA”) linked to here. This Agreement is incorporated into and made a part of Section 6 of the MSA.
For purposes of this Agreement, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this Agreement have the meanings given in the MSA.
2.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
2.2. “CCPA” means the California Consumer Privacy Act of 2018, as amended from time to time.
2.3. “Customer Personal Data” means any Customer Data (as defined in the MSA) that is Personal Data. For purposes of this Agreement, Customer Personal Data does not include personal information of employees or other representatives of Customer with whom Correlated Labs has a direct business relationship.
2.4. “Data Protection Laws” means, with respect to a party, all privacy, data protection and information security-related laws and regulations applicable to such party’s Processing of Personal Data, including, where applicable, EU Data Protection Law and the CCPA.
2.5. “Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.
2.6. “EU Data Protection Law” means European Union Regulation 2016/679 (“GDPR”) and any national legislation implementing GDPR, as amended from time to time.
2.7. “Processing” means 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 or otherwise making available, alignment or combination, restriction, erasure or destruction.
2.8. “Personal Data” means “personal data”, “personal information”, “personally identifiable information” or similar information defined in and governed by Data Protection Laws.
2.9. “Security Incident” means any confirmed unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data being Processed by Correlated Labs. Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks or other network attacks on firewalls or networked systems.
2.10. “Subprocessor” means any third party authorized by Correlated Labs or its Affiliates to Process any Customer Personal Data.
2.11. “Third Party Subprocessor” means any Subprocessor who is not an Affiliate of Correlated Labs.
3. General; Termination
3.1. This Agreement is governed by the MSA with the Customer and except as expressly set forth in this Agreement, the MSA remains unchanged and in full force and effect. If there is any conflict between this Agreement and the MSA, this Agreement shall govern.
3.2. Any liabilities arising under this Agreement are subject to the limitations of liability in the MSA.
3.3. This Agreement will be governed by and construed in accordance with governing law and jurisdiction provisions in the MSA, unless required otherwise by applicable Data Protection Laws.
3.4. This Agreement will automatically terminate upon expiration or termination of the MSA.
4. Scope of this Agreement
This Agreement applies to Correlated Labs’s Processing of Customer Personal Data under the MSA, except that Annex A (EU Annex) to this Agreement applies only to such Processing of Customer Personal Data governed by EU Data Protection Law and Annex B (California Annex) to this Agreement applies only to such Processing of Customer Personal Data governed by the CCPA.
5. Role and Scope of the Processing
5.1. Correlated Labs will Process Customer Data only in accordance with Customer’s instructions. By entering into the MSA, Customer instructs Correlated Labs to Process Customer Data to provide the Services and pursuant to any other written instructions given by Customer and acknowledged in writing by Correlated Labs as constituting instructions for purposes of this Agreement. Customer acknowledges and agrees that such instruction authorizes Correlated Labs to Process Customer Data (a) to perform its obligations and exercise its rights under the MSA; and (b) to perform its legal obligations and to establish, exercise or defend legal claims in respect of the MSA.
5.2. For clarity, nothing in this Agreement limits Correlated Labs from transmitting Customer Data to and among Integrations as directed by Customer through the Services. The parties agree that Integrations are not Subprocessors of Correlated Labs and that, between the parties, Customer is solely responsible for the Processing of Customer Personal Data by, and other acts and omissions of Integrations or parties associated therewith.
6.1. Customer specifically authorizes Correlated Labs to use its Affiliates as Subprocessors, and generally authorizes Correlated Labs to engage Third Party Subprocessors to Process Customer Personal Data. Correlated Labs:
6.1.1. shall enter into a written agreement with each Subprocessor, imposing data protection obligations substantially similar to those set out in this Agreement; and 6.1.2. remains liable for compliance with the obligations of this Agreement and for any acts or omissions of the Subprocessor that cause Correlated Labs to breach any of its obligations under this Agreement.
6.2. A list of Correlated Labs’s Subprocessors, including their functions and locations can be made available upon request and may be updated by Correlated Labs from time to time in accordance with this Agreement.
7.1. Customer is responsible for reviewing the information made available by Correlated Labs relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Correlated Labs’s obligations as compared to those reflected in such terms as of the Effective Date).
7.2. Upon becoming aware of a confirmed Security Incident, Correlated Labs shall notify Customer unless prohibited by applicable law. A delay in giving such notice requested by law enforcement and/or in light of Correlated Labs’s legitimate needs to investigate or remediate the matter before providing notice shall not constitute an undue delay. Such notices will describe, to the extent possible, details of the Security Incident, including steps taken to mitigate the potential risks and steps Correlated Labs recommends Customer take to address the Security Incident. Without prejudice to Correlated Labs’s obligations under this Section 7.3., Customer is solely responsible for complying with Security Incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Security Incidents. Correlated Labs’s notification of or response to a Security Incident under this Section 7.3. will not be construed as an acknowledgement by Correlated Labs of any fault or liability with respect to the Security Incident.
7.3. Customer agrees that, without limitation of Correlated Labs’s obligations under this Section 7, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that it uses with the Services; and (d) maintaining its own backups of Customer Data.
8. Data Subject Requests
Correlated Labs shall upon Customer’s request (and at Customer’s expense) provide Customer with such assistance as it may reasonably require to comply with its obligations under Data Protection Laws to respond to requests from individuals to exercise their rights under Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in cases where Customer cannot reasonably fulfill such requests independently by using the self-service functionality of the Services. If Correlated Labs receives a request from a Data Subject in relation to their Customer Personal Data, Correlated Labs will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to any such request.
9. Return or Deletion of Data
9.1. Correlated Labs shall, within sixty (60) days after request by Customer following the termination or expiration of the MSA, delete all of the Customer Personal Data from Correlated Labs’s systems.
9.2. Notwithstanding the foregoing, Customer understands that Correlated Labs may retain Customer Personal Data if required by law, which data will remain subject to the requirements of this Agreement.
Annex A - EU Annex
1. Definitions; Processing of Data
1.1. Definitions. For purposes of this Annex A, the terms “controller”, “processor” and “supervisory authority” have the meanings given in EU Data Protection Law; “Standard Contractual Clauses” means the Standard Contractual Clauses for Processors as approved by the European Commission under Decision 2010/87/EU in the form made accessible in Customer’s Correlated Labs Workspace; and “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.
1.2. Subject Matter and Details of Processing. The parties acknowledge and agree that (a) the subject matter of the Processing under the MSA is Correlated Labs’s provision of the Services; (b) the duration of the Processing is from Correlated Labs’s receipt of Customer Personal Data until deletion of all Customer Personal Data by Correlated Labs in accordance with the MSA; (c) the nature and purpose of the Processing is to provide the Services; (d) the Data Subjects to whom the Processing pertains are Customer’s customers, end users or other individuals to whom Customer Personal Data pertains; and (e) the categories of Customer Personal Data are such categories as Customer is authorized to ingest into the Services under the MSA.
1.4. Correlated Labs’s Compliance with Instructions. Correlated Labs will only Process Customer Personal Data in accordance with Customer’s instructions in this Agreement unless EU Data Protection Law requires otherwise, in which case Correlated Labs will notify Customer (unless that law prohibits Correlated Labs from doing so).
2. Data Security
2.1. Correlated Labs Security Measures, Controls and Assistance
2.1.1. Correlated Labs will (taking into account the nature of the Processing of Customer Personal Data and the information available to Correlated Labs) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under EU Data Protection Law, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 7 of this Agreement; and (c) complying with this Annex A.
2.1.2. Correlated Labs will grant access to Customer Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality obligations. Should an employee of a Customer seek to exercise their rights under EU Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in respect of any Usage Data that constitutes Personal Data then the Customer undertakes to inform Correlated Labs without delay and instruct their employee to contact Correlated Labs directly via email@example.com or such other email address as directed at the time.
2.2. Audits and Reviews of Compliance. To the extent applicable Data Protection Laws include a right for Customer to audit Correlated Labs’s Processing of Customer Personal Data, Customer will exercise such audit right, and Correlated Labs will fulfill its corresponding obligations, as follows:
2.2.1. Correlated Labs shall make available to Customer relevant information regarding Correlated Labs’s Processing of Customer Personal Data under this Agreement in the form of Correlated Labs’s most recent audit reports (“Third Party Reports”).
2.2.2. Not more than once per calendar year and at Customer’s expense, Customer may audit Correlated Labs’s Processing of Customer Personal Data for compliance with its obligations under this Agreement by submitting reasonable requests for information, including security and audit questionnaires. Correlated Labs will provide written responses to the extent the requested information is necessary to confirm Correlated Labs’s compliance with this Agreement. However, if the requested information is addressed in a Third Party Report issued within the 12-month period prior to Customer’s request and Correlated Labs confirms there have been no material changes in the interim relevant to Customer’s request, Customer agrees to accept such Third Party Report in lieu of a written response. Any information provided by Correlated Labs under this Section 2 constitutes Correlated Labs’s Confidential Information under the MSA.
2.2.3. If a third party is to conduct an audit under this Section 2, Correlated Labs may object to the auditor if the auditor is, in Correlated Labs’s reasonable opinion, not independent, a competitor of Correlated Labs or otherwise unqualified. Such objection by Correlated Labs will require Customer to appoint another auditor or conduct the audit itself.
2.2.4. Customer will promptly notify Correlated Labs of any non-compliance discovered during the course of an audit and provide Correlated Labs any audit reports generated in connection with any audit under this Section 2, unless prohibited by EU Data Protection Law or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and confirming that Correlated Labs’s Processing of Customer Personal Data complies with this Agreement.
2.2.5. Customer shall reimburse Correlated Labs for any time expended by Correlated Labs or its Subprocessors in connection with any audits under this Section 2 at Correlated Labs’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Nothing in this Agreement shall be construed to require Correlated Labs to furnish more information about its Third Party Subprocessors in connection with such audits than such Third Party Subprocessors make generally available to their customers. Nothing in this Section 2 shall require Correlated Labs to breach any duties of confidentiality.
3. Impact Assessments and Consultations
Correlated Labs may (taking into account the nature of the Processing and the information available to Correlated Labs) reasonably assist Customer in complying with Customer’s obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Correlated Labs’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the MSA, including this Agreement.
4. Data Transfers
4.1. Data Processing Facilities. Correlated Labs may, subject to Section 4.b., store and Process Customer Personal Data in the United States or anywhere Correlated Labs or its Subprocessors maintain facilities. Subject to Correlated Labs’s obligations in this Section 4, Customer is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of EU Data Protection Law.
4.2. Standard Contractual Clauses. If Customer transfers Customer Personal Data out of the EU to Correlated Labs in a country not deemed by the European Commission to have adequate data protection, such transfer will be governed by the Standard Contractual Clauses, the terms of which are hereby incorporated into this DPA. In furtherance of the foregoing, the parties agree that:
4.2.1. for purposes of the Standard Contractual Clauses, (a) Customer will act as the data exporter and (b) Correlated Labs will act as the data importer;
4.2.2. for purposes of Appendix 1 to the Standard Contractual Clauses, the Data Subjects, categories of data, and the processing operations shall be as set out in Section 1 to this Annex A;
4.2.3. for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;
4.2.4. upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and data importer may remove or redact all commercial information or clauses unrelated to the Standard Contractual Clauses or their equivalent beforehand;
4.2.5. the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2.b. of this Annex A;
4.2.6. Customer’s authorizations in Section 6 of this Agreement (Subprocessing) will constitute Customer’s prior written consent to the subcontracting by Correlated Labs of the Processing of Customer Personal Data if such consent is required under Clause 5(h) of the Standard Contractual Clauses;
4.2.7. certification of deletion of Customer Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request; and
4.2.8. the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under Chapter V of the GDPR in the absence of such Standard Contractual Clauses on any other basis.
Annex B - California Annex
1. For purposes of this Annex B, the terms “business”, “commercial purpose”, “service provider”, “sell” and “personal information” have the meanings given in the CCPA.
2. With respect to Customer Personal Data, Correlated Labs is a service provider under the CCPA.
3. Correlated Labs will not (a) sell Customer Personal Data; (b) retain, use or disclose any Customer Personal Data for any purpose other than for the specific purpose of providing the Services, including retaining, using or disclosing the Customer Personal Data for a commercial purpose other than providing the Services; or (c) retain, use or disclose the Customer Personal Data outside of the direct business relationship between Correlated Labs and Customer.
4. The parties acknowledge and agree that the Processing of Customer Personal Data authorized by Customer’s instructions described in Section 5 of this Agreement is integral to and encompassed by Correlated Labs’s provision of the Services and the direct business relationship between the parties.
5. Notwithstanding anything in the MSA or any Order Form entered in connection therewith, the parties acknowledge and agree that Correlated Labs’s access to Customer Personal Data does not constitute part of the consideration exchanged by the parties in respect of the MSA.