1. Definitions
1.1 "Affiliate" means (i) an entity of which a party directly or indirectly
owns fifty percent (50%) or more of the stock or other equity interest, (ii)
an entity that owns at least fifty percent (50%) or more of the stock or
other equity interest of a party, or (iii) an entity which is under common
control with a party by having at least fifty percent (50%) or more of the
stock or other equity interest of such entity and a party owned by the same
person, but such entity shall only be deemed to be an Affiliate so long as
such ownership exists.
1.2 "Authorized Sub-Processor" means a third-party who has a need to know or
otherwise access Customer's Personal Data to enable Factory to perform its
obligations under this DPA or the Agreement, and who is either (1) listed in
Exhibit B or (2) subsequently authorized under Section 4.2 of this DPA.
1.3 "Contact Data" means the Personal Data that Factory processes as a
controller, such as account information, payment information, and event
attendee information.
- 1.4 "Data Exporter" means Customer.
- 1.5 "Data Importer" means Factory.
1.6 "Data Protection Laws" means any applicable laws and regulations in any
relevant jurisdiction relating to the use or processing of Personal Data
including: (i) the California Consumer Privacy Act, as amended by the
California Consumer Privacy Act of 2018, as amended by the California
Privacy Rights Act of 2020 ("CCPA"), (ii) the General Data Protection
Regulation (Regulation (EU) 2016/679) ("EU GDPR") and the EU GDPR as it
forms part of the law of England and Wales by virtue of section 3 of the
European Union (Withdrawal) Act 2018 (the "UK GDPR") (together,
collectively, the "GDPR"), (iii) the Swiss Federal Act on Data Protection;
(iv) the UK Data Protection Act 2018; (v) the Privacy and Electronic
Communications (EC Directive) Regulations 2003; and (vi) the Virginia
Consumer Data Protection Act ("VCDPA"); in each case, as updated, amended or
replaced from time to time. The terms "Data Subject", "Personal Data",
"Personal Data Breach", "processing", "processor," "controller," and
"supervisory authority" shall have the meanings set forth in the GDPR.
1.7 "EU SCCs" means the standard contractual clauses approved by the
European Commission in Commission Decision 2021/914 dated 4 June 2021, for
transfers of personal data to countries not otherwise recognized as offering
an adequate level of protection for personal data by the European Commission
(as amended and updated from time to time), as modified by Section 6.2 of
this DPA.
1.8 "ex-EEA Transfer" means the transfer of Personal Data, which is
processed in accordance with the GDPR, from the Data Exporter to the Data
Importer (or its premises) outside the European Economic Area (the "EEA"),
and such transfer is not governed by an adequacy decision made by the
European Commission in accordance with the relevant provisions of the GDPR.
1.9 "ex-UK Transfer" means the transfer of Personal Data covered by Chapter
V of the UK GDPR, which is processed in accordance with the UK GDPR and the
Data Protection Act 2018, from the Data Exporter to the Data Importer (or
its premises) outside the United Kingdom (the "UK"), and such transfer is
not governed by an adequacy decision made by the Secretary of State in
accordance with the relevant provisions of the UK GDPR and the Data
Protection Act 2018.
1.10 "Personal Data" means "personal data", "personal information",
"personally identifiable information" or similar information defined in and
governed by Data Protection Laws.
1.11 "Service-Generated Data" means usage data and metadata that is
generated through the use of the Services, including data generated through
the use of Support Services. This DPA applies to Service-Generated Data to
the extent Service-Generated Data constitutes Personal Data.
- 1.12 "Services" shall have the meaning set forth in the Agreement.
1.13 "Standard Contractual Clauses" means the EU SCCs and the UK SCCs.
- 1.14 "UK SCCs" means the EU SCCs, as amended by the UK Addendum.
2. Relationship of the Parties; Processing of Data
2.1 The parties acknowledge and agree that with regard to the processing of
Personal Data, Customer may act either as a controller or processor and,
except as expressly set forth in this DPA or the Agreement, Factory is a
processor. Customer shall, in its use of the Services, at all times process
Personal Data, and provide instructions for the processing of Personal Data,
in compliance with Data Protection Laws. Customer shall ensure that the
processing of Personal Data in accordance with Customer's instructions will
not cause Factory to be in breach of the Data Protection Laws. Customer is
solely responsible for the accuracy, quality, and legality of (i) the
Personal Data provided to Factory by or on behalf of Customer, (ii) the
means by which Customer acquired any such Personal Data, and (iii) the
instructions it provides to Factory regarding the processing of such
Personal Data. Customer shall not provide or make available to Factory any
Personal Data in violation of the Agreement or otherwise inappropriate for
the nature of the Services, and shall indemnify Factory from all claims and
losses in connection therewith.
2.2 Factory shall not process Personal Data (i) for purposes other than
those set forth in the Agreement and/or Exhibit A, (ii) in a manner
inconsistent with the terms and conditions set forth in this DPA or any
other documented instructions provided by Customer, including with regard to
transfers of personal data to a third country or an international
organization, unless required to do so by Supervisory Authority to which
Factory is subject; in such a case, Factory shall inform the Customer of
that legal requirement before processing, unless that law prohibits such
information on important grounds of public interest, or (iii) in violation
of Data Protection Laws. Customer hereby instructs Factory to process
Personal Data in accordance with the foregoing and as part of any processing
initiated by Customer in its use of the Services.
2.3 The subject matter, nature, purpose, and duration of this processing, as
well as the types of Personal Data collected and categories of Data
Subjects, are described in Exhibit A to this DPA.
2.4 Following completion of the Services, at Customer's choice, Factory
shall return or delete Customer's Personal Data, unless further storage of
such Personal Data is required or authorized by applicable law. If return or
destruction is impracticable or prohibited by law, rule or regulation,
Factory shall take measures to block such Personal Data from any further
processing (except to the extent necessary for its continued hosting or
processing required by law, rule or regulation) and shall continue to
appropriately protect the Personal Data remaining in its possession,
custody, or control. If Customer and Factory have entered into Standard
Contractual Clauses as described in Section 6 (Transfers of Personal Data),
the parties agree that the certification of deletion of Personal Data that
is described in Clause 8.1(d) and Clause 8.5 of the EU SCCs (as applicable)
shall be provided by Factory to Customer only upon Customer's request.
2.5 The Parties acknowledge and agree that the processing of personal
information or personal data that is subject to the CCPA or VCDPA shall be
carried out in accordance with the terms set forth in Exhibit E.
3. Confidentiality
Factory shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Factory's confidentiality obligations in the Agreement. Customer agrees that Factory may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this DPA, the Agreement, or the provision of Services to Customer.
4. Authorized Sub-Processors
4.1 Customer acknowledges and agrees that Factory may (1) engage its
Affiliates and the Authorized Sub-Processors listed in Exhibit B to this DPA
to access and process Personal Data in connection with the Services and (2)
from time to time engage additional third parties for the purpose of
providing the Services, including without limitation the processing of
Personal Data. By way of this DPA, Customer provides general written
authorization to Factory to engage sub-processors as necessary to perform
the Services.
4.2 Factory’s current Authorized Sub-Processors (the “List”) are located at
https://trust.factory.ai/subprocessors. Such List may be updated by Factory
from time to time. Factory may provide a mechanism to subscribe to
notifications of new Authorized Sub-Processors and Customer agrees to
subscribe to such notifications where available. At least ten (10) days
before enabling any third party other than existing Authorized
Sub-Processors to access or participate in the processing of Personal Data,
Factory will add such third party to the List and notify Customer via email.
Customer may object to such an engagement by informing Factory within ten
(10) days of receipt of the aforementioned notice by Customer, provided such
objection is in writing and based on reasonable grounds relating to data
protection. Customer acknowledges that certain sub-processors are essential
to providing the Services and that objecting to the use of a sub-processor
may prevent Factory from offering the Services to Customer.
4.3 If Customer reasonably objects to an engagement in accordance with
Section 4.2, and Factory cannot provide a commercially reasonable
alternative within a reasonable period of time, Customer may discontinue the
use of the affected Service by providing written notice to Factory.
Discontinuation shall not relieve Customer of any fees owed to Factory under
the Agreement.
4.4 If Customer does not object to the engagement of a third party in
accordance with Section 4.2 within ten (10) days of notice by Factory, that
third party will be deemed an Authorized Sub-Processor for the purposes of
this DPA.
4.5 Factory will enter into a written agreement with the Authorized
Sub-Processor imposing on the Authorized Sub-Processor data protection
obligations comparable to those imposed on Factory under this DPA with
respect to the protection of Personal Data. In case an Authorized
Sub-Processor fails to fulfill its data protection obligations under such
written agreement with Factory, Factory will remain liable to Customer for
the performance of the Authorized Sub-Processor’s obligations under such
agreement.
4.6 If Customer and Factory have entered into Standard Contractual Clauses
as described in Section 6 (Transfers of Personal Data), (i) the above
authorizations will constitute Customer’s prior written consent to the
subcontracting by Factory of the processing of Personal Data if such consent
is required under the Standard Contractual Clauses, and (ii) the parties
agree that the copies of the agreements with Authorized Sub-Processors that
must be provided by Factory to Customer pursuant to Clause 9(c) of the EU
SCCs may have commercial information, or information unrelated to the
Standard Contractual Clauses or their equivalent, removed by Factory
beforehand, and that such copies will be provided by Factory only upon
request by Customer.
5. Security of Personal Data
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Factory shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data. Exhibit C sets forth additional information about Factory’s technical and organizational security measures.
6. Transfers of Personal Data
- 6.1 The parties agree that Factory may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Factory’s primary processing operations take place in the United States, and that the transfer of Customer’s Personal Data to the United States is necessary for the provision of the Services to Customer. If Factory transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Factory will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
6.2 Ex-EEA Transfers. The parties agree that ex-EEA Transfers are made
pursuant to the EU SCCs, which are deemed entered into (and incorporated into
this DPA by this reference) and completed as follows:
6.2.1 Module Two (Controller to Processor) of the EU SCCs apply when
Customer is a controller and Factory is processing Personal Data for
Customer as a processor pursuant to Section 2 of this DPA.
6.2.2 Module Three (Processor to Sub-Processor) of the EU SCCs apply when
Customer is a processor and Factory is processing Personal Data on behalf of
Customer as a sub-processor.
- 6.3 For each module, where applicable the following applies:
- 6.3.1 The optional docking clause in Clause 7 does not apply.
6.3.2 In Clause 9, Option 2 (general written authorization) applies, and the
minimum time period for prior notice of sub-processor changes shall be as
set forth in Section 4.2 of this DPA;
- 6.3.3 In Clause 11, the optional language does not apply;
- 6.3.4 All square brackets in Clause 13 are hereby removed;
6.3.5 In Clause 17 (Option 1), the EU SCCs will be governed by Irish law;
6.3.6 In Clause 18(b), disputes will be resolved before the courts of
Ireland;
6.3.7 Exhibit B to this DPA contains the information required in Annex I and
Annex III of the EU SCCs;
6.3.8 Exhibit C to this DPA contains the information required in Annex II of
the EU SCCs; and
6.3.9 By entering into this DPA, the parties are deemed to have signed the
EU SCCs incorporated herein, including their Annexes.
6.4 Ex-UK Transfers. The parties agree that ex-UK Transfers are made pursuant
to the UK SCCs, which are deemed entered into and incorporated into this DPA
by reference, and amended and completed in accordance with the UK Addendum,
which is incorporated herein as Exhibit D of this DPA.
6.5 Transfers from Switzerland. The parties agree that transfers from
Switzerland are made pursuant to the EU SCCs with the following modifications:
6.5.1 The terms “General Data Protection Regulation” or “Regulation (EU)
2016/679” as utilized in the EU SCCs shall be interpreted to include the
Federal Act on Data Protection of 19 June 1992 (the “FADP,” and as revised
as of 25 September 2020, the “Revised FADP”) with respect to data transfers
subject to the FADP.
6.5.2 The terms of the EU SCCs shall be interpreted to protect the data of
legal entities until the effective date of the Revised FADP.
6.5.3 Clause 13 of the EU SCCs is modified to provide that the Federal Data
Protection and Information Commissioner (“FDPIC”) of Switzerland shall have
authority over data transfers governed by the FADP and the appropriate EU
supervisory authority shall have authority over data transfers governed by
the GDPR. Subject to the foregoing, all other requirements of Clause 13
shall be observed.
6.5.4 The term “EU Member State” as utilized in the EU SCCs shall not be
interpreted in such a way as to exclude Data Subjects in Switzerland from
exercising their rights in their place of habitual residence in accordance
with Clause 18(c) of the EU SCCs.
6.6 Supplementary Measures. In respect of any ex-EEA Transfer or ex-UK
Transfer, the following supplementary measures shall apply:
6.6.1 As of the date of this DPA, the Data Importer has not received any
formal legal requests from any government intelligence or security
service/agencies in the country to which the Personal Data is being
exported, for access to (or for copies of) Customer’s Personal Data
(“Government Agency Requests”);
6.6.2 If, after the date of this DPA, the Data Importer receives any
Government Agency Requests, Factory shall attempt to redirect the law
enforcement or government agency to request that data directly from
Customer. As part of this effort, Factory may provide Customer’s basic
contact information to the government agency. If compelled to disclose
Customer’s Personal Data to a law enforcement or government agency, Factory
shall give Customer reasonable notice of the demand and cooperate to allow
Customer to seek a protective order or other appropriate remedy unless
Factory is legally prohibited from doing so. Factory shall not voluntarily
disclose Personal Data to any law enforcement or government agency. Data
Exporter and Data Importer shall (as soon as reasonably practicable) discuss
and determine whether all or any transfers of Personal Data pursuant to this
DPA should be suspended in the light of such Government Agency Requests; and
6.6.3 The Data Exporter and Data Importer will meet regularly to consider
whether: (i) the protection afforded by the laws of the country of the Data
Importer to data subjects whose Personal Data is being transferred is
sufficient to provide broadly equivalent protection to that afforded in the
EEA or the UK, whichever the case may be; (ii) additional measures are
reasonably necessary to enable the transfer to be compliant with the Data
Protection Laws; and (iii) it is still appropriate for Personal Data to be
transferred to the relevant Data Importer, taking into account all relevant
information available to the parties, together with guidance provided by the
supervisory authorities.
6.6.4 If Data Protection Laws require the Data Exporter to execute the
Standard Contractual Clauses applicable to a particular transfer of Personal
Data to a Data Importer as a separate agreement, the Data Importer shall, on
request of the Data Exporter, promptly execute such Standard Contractual
Clauses incorporating such amendments as may reasonably be required by the
Data Exporter to reflect the applicable appendices and annexes, the details
of the transfer and the requirements of the relevant Data Protection Laws.
6.6.5 If either (i) any of the means of legitimizing transfers of Personal
Data outside of the EEA or UK set forth in this DPA cease to be valid or
(ii) any supervisory authority requires transfers of Personal Data pursuant
to those means to be suspended, then Data Importer may by notice to the Data
Exporter, with effect from the date set out in such notice, amend or put in
place alternative arrangements in respect of such transfers, as required by
Data Protection Laws.
6.7 Factory shall, to the extent permitted by law, notify Customer upon
receipt of a request by a Data Subject to exercise the Data Subject’s right
of: access, rectification, erasure, data portability, restriction or cessation
of processing, withdrawal of consent to processing, and/or objection to being
subject to processing that constitutes automated decision-making (such
requests individually and collectively “Data Subject Request(s)”). If Factory
receives a Data Subject Request in relation to Customer’s data, Factory will
advise the Data Subject to submit their request to Customer and Customer will
be responsible for responding to such request, including, where necessary, by
using the functionality of the Services. Customer is solely responsible for
ensuring that Data Subject Requests for erasure, restriction or cessation of
processing, or withdrawal of consent to processing of any Personal Data are
communicated to Factory, and, if applicable, for ensuring that a record of
consent to processing is maintained with respect to each Data Subject.
- 6.8 Factory shall, at the request of the Customer, and taking into account the nature of the processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Customer is itself unable to respond without Factory’s assistance and (ii) Factory is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Factory.
7. Actions and Access Requests; Audits
7.1 Factory shall, taking into account the nature of the processing and the
information available to Factory, provide Customer with reasonable
cooperation and assistance where necessary for Customer to comply with its
obligations under the GDPR to conduct a data protection impact assessment
and/or to demonstrate such compliance, provided that Customer does not
otherwise have access to the relevant information. Customer shall be
responsible to the extent legally permitted for any costs and expenses
arising from any such assistance by Factory.
7.2 Factory shall, taking into account the nature of the processing and the
information available to Factory, provide Customer with reasonable
cooperation and assistance with respect to Customer’s cooperation and/or
prior consultation with any Supervisory Authority, where necessary and where
required by the GDPR. Customer shall be responsible to the extent legally
permitted for any costs and expenses arising from any such assistance by
Factory.
7.3 Factory shall maintain records sufficient to demonstrate its compliance
with its obligations under this DPA, and retain such records for a period of
three (3) years after the termination of the Agreement. Customer shall, with
reasonable notice to Factory, have the right to review, audit and copy such
records at Factory’s offices during regular business hours.
7.4 Upon Customer’s written request at reasonable intervals, and subject to
reasonable confidentiality controls, Factory shall, either (i) make
available for Customer’s review copies of certifications or reports
demonstrating Factory’s compliance with prevailing data security standards
applicable to the processing of Customer’s Personal Data, or (ii) if the
provision of reports or certifications pursuant to (i) is not reasonably
sufficient under Data Protection Laws, allow Customer’s independent third
party representative to conduct an audit or inspection of Factory’s data
security infrastructure and procedures that is sufficient to demonstrate
Factory’s compliance with its obligations under Data Protection Laws,
provided that (a) Customer provides reasonable prior written notice of any
such request for an audit and such inspection shall not be unreasonably
disruptive to Factory’s business; (b) such audit shall only be performed
during business hours and occur no more than once per calendar year; and (c)
such audit shall be restricted to data relevant to Customer. Customer shall
be responsible for the costs of any such audits or inspections, including
without limitation a reimbursement to Factory for any time expended for
on-site audits. If Customer and Factory have entered into Standard
Contractual Clauses as described in Section 6 (Transfers of Personal Data),
the parties agree that the audits described in Clause 8.9 of the EU SCCs
shall be carried out in accordance with this Section 7.4.
7.5 Factory shall immediately notify Customer if an instruction, in
Factory’s opinion, infringes the Data Protection Laws or Supervisory
Authority.
7.6 In the event of a Personal Data Breach, Factory shall, without undue
delay, inform Customer of the Personal Data Breach and take such steps as
Factory in its sole discretion deems necessary and reasonable to remediate
such violation (to the extent that remediation is within Factory’s
reasonable control).
7.7 In the event of a Personal Data Breach, Factory shall, taking into
account the nature of the processing and the information available to
Factory, provide Customer with reasonable cooperation and assistance
necessary for Customer to comply with its obligations under the GDPR with
respect to notifying (i) the relevant Supervisory Authority and (ii) Data
Subjects affected by such Personal Data Breach without undue delay.
7.8 The obligations described in Sections 7.6 and 87.7 shall not apply in
the event that a Personal Data Breach results from the actions or omissions
of Customer. Factory’s obligation to report or respond to a Personal Data
Breach under Sections 7.6 and 7.7 will not be construed as an
acknowledgement by Factory of any fault or liability with respect to the
Personal Data Breach.
8. Conflict
In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable terms in the Standard Contractual Clauses; (2) the terms of this DPA; (3) the Agreement; and (4) Factory’s privacy policy. Any claims brought in connection with this DPA will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Agreement.
Exhibit A: Details of Processing
Nature and Purpose of Processing: Factory will process Customer’s Personal Data as necessary to provide the Services under the Agreement, for the purposes specified in the Agreement and this DPA, and in accordance with Customer’s instructions as set forth in this DPA. The nature of processing includes, without limitation:
- Receiving data, including collection, accessing, retrieval, recording, and data entry
- Holding data, including storage, organization and structuring
- Using data, including analysis, consultation, testing
- Protecting data, including restricting, encrypting, and security testing
- Erasing data, including destruction and deletion
Duration of Processing: Factory will process Customer’s Personal Data as long as required (i) to provide the Services to Customer under the Agreement; (ii) for Factory’s legitimate business needs; or (iii) by applicable law or regulation.
Categories of Data Subjects: Customer employees
Categories of Personal Data: Name, email address, job title, and/or GitHub username of Customer’s employees.
Sensitive Data or Special Categories of Data: None
Exhibit B
1. The Parties
- Data exporter(s):Customer and authorized Affiliates of Customer
Name: Customer's account owner email address, or to the email address(es) for which Customer elects to receive privacy communicationsActivities relevant to the data transferred under these Clauses: Customer Data will be subject to the following basic processing activities: the provision of Services and disclosures in accordance with the Agreement and/or as compelled by applicable laws. Personal Data contained in Service-Generated Data and/or Contact Data will be subject to the following processing activities by Factory: Factory may use Service-Generated Data and/or Contact Data to operate, improve and support the Services, to provide marketing and service-related messages and for other lawful business practices, such as analytics, benchmarking and reporting.
Signature and date: By entering into the Agreement, Data Exporter is deemed to have signed this DPA and the Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Role (controller/processor): Controller
- Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
Name: San Francisco AI Factory, Inc.
Trading Name (if different): Factory
Address: 410 Townsend St. Suite 100 San Francisco, California, 94107
Contact person’s name, position and contact details: Eno Reyes, Chief Technology Officer, eno@factory.ai
Activities relevant to the data transferred under these Clauses: As set forth in the DPA
Signature and date: 16 October 2023 /s/ Eno Reyes
Role (controller/processor): Processor
2. Description of the Transfer
Item | Description |
---|
Data subjects | Cloud hosting and infrastructure |
Categories of Personal Data | As described in Exhibit A of the DPA |
Special Category Personal Data (if applicable) | As described in Exhibit A of the DPA |
Nature of the Processing | As described in Exhibit A of the DPA |
Purposes of Processing | As described in Exhibit A of the DPA |
Duration of Processing and Retention (or the criteria to determine such period) | As described in Exhibit A of the DPA |
Frequency of the transfer | As necessary to provide perform all obligations and rights with respect to Personal Data as provided in the Agreement or DPA |
Recipients of Personal Data Transferred to the Data Importer | Factory will maintain and provide a list of its Subprocessors upon request. |
3. Competent Supervisory Authority
The supervisory authority shall be the supervisory authority of the Data Exporter, as determined in accordance with Clause 13 of the EU SCCs. The supervisory authority for the purposes of the UK Addendum shall be the UK Information Commissioner’s Officer.
4. List of Authorized Sub-Processors
Name of Authorized Sub-Processor | Address | Contact Person Name, Position, Contact Information | Description of Processing | Country in which subprocessing will take place |
---|
Microsoft Azure | Azure.microsoft.com | Eno Reyes, Chief Technology Officer, eno@factory.ai | Name, position, email, github username | US |
Amazon Web Services (AWS) | Aws.amazon.com | Eno Reyes, Chief Technology Officer, eno@factory.ai | Name, position, email, github username | US |
Google Cloud Platform (GCP) | Cloud.google.com | Eno Reyes, Chief Technology Officer, eno@factory.ai | Name, position, email, github username | US |
Slack | Slack.com | Eno Reyes, Chief Technology Officer, eno@factory.ai | Name, position, email, github username | US |
Exhibit C: Description of the Technical and Organisational Security Measures implemented by the Data Importer
The following includes the information required by Annex II of the EU SCCs and Annex II of the UK Addendum.
Technical and Organizational Security Measure | Details |
---|
Measures of pseudonymization and encryption of Personal Data | Factory secures personal data using encryption measures and pseudonymization. Data is encrypted both in transit and at rest. The use of encryption and pseudonymization is heavily enforced when transmitting, storing, or handling personal data. Factory utilizes encryption technologies to protect all data and communications during transmission across public networks, to protect information from unauthorized access or changes. Encryption keys are managed using policies that ensure secure and effective key management processes. |
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services | Factory has established a reliable system designed to ensure the ongoing confidentiality, integrity, availability, and resilience of its processing systems. This involves implementing strong encryption and pseudonymization for protecting personal data and establishing strong access controls to ensure user authentication and authorization. Factory also aims to use secure system and application settings, monitor and evaluate the effectiveness of its technical and organizational measures, and maintain robust physical security of data locations. |
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident | In the event of a physical or technical incident, Factory has implemented measures for backup and recovery of data. Critical data is regularly backed up to ensure its availability and can be restored in a timely manner if needed. Factory’s data retention policy is designed to ensure that data is stored only as long as necessary, with data backups being encrypted and securely stored. |
Processes for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures in order to ensure the security of the processing | Factory has established a robust testing program to regularly evaluate the effectiveness of technical and organizational measures for ensuring data security. This includes regular vulnerability scanning, penetration testing, system audits and active audits from providers affiliated with Vanta. The effectiveness of our security measures is regularly assessed, with corrective actions taken as necessary. |
Measures for user identification and authorization | Factory has implemented strong access controls and multi-factor authentication to identify and authorize users. Systems require unique user identifiers and strong passwords, with password management systems ensuring robust security. Users are granted access rights based on the principle of least privilege, and user ID and password security is heavily enforced. |
Measures for the protection of data during transmission | Factory uses strong encryption technologies to protect data during transmission across public networks. This includes the use of HTTPS and secure email transmission protocols to protect data in transit. |
Measures for the protection of data during storage | Factory uses encryption technologies to protect data during storage. Data at rest is encrypted using strong encryption algorithms. Factory also uses secure system configurations and access controls to restrict and monitor access to stored data. |
Measures for ensuring physical security of locations at which personal data are processed | Factory takes steps to ensure the physical security of locations processing personal data through keycard requirements, physical access logs, security personnel, and monitoring systems hosted via Factory’s office provider. Factory’s offices are secured, and physical access to data processing locations is restricted and monitored. Physical security measures are designed to prevent unauthorized access and protect against physical threats such as theft or natural disasters. |
Measures for ensuring events logging | Events logging is implemented to monitor user activities, system events, faults, and security events. Factory uses logging and monitoring systems in our cloud providers to continuously monitor user activities and system events and detect any potential security threats or incidents. Logs are regularly reviewed, and any anomalies or potential security incidents are promptly reported and investigated. |
Measures for ensuring system configuration, including default configuration | Factory ensures secure configuration of systems, including default configurations. System configurations are regularly reviewed to ensure that they meet Factory’s security requirements, and unnecessary services or functions are disabled. Any changes in system configuration are properly authorized and are in compliance with Factory’s change management policy. |
Measures for internal IT and IT security governance and management | Factory has established IT and security governance structures to manage our information security program, such as policies, processes, and procedures designed to ensure the effective management of IT and security resources. Factory’s IT and security governance structure ensures that it maintains adequate controls to protect its data and systems. Factory monitors this with Vanta’s and Rippling’s IT management software. |
Measures for certification/assurance of processes and products | Factory has completed its SOC 2 Type 1 audit. |
Measures for ensuring data minimization | Factory has in place measures for data minimization to minimize the amount, categories and sensitivity of data collected and stored are minimized. Factory only collects and stores the minimum amount of data necessary for business processes. |
Measures for ensuring limited data retention | Factory has a data retention policy which ensures that data is retained only for as long as necessary for the purposes for which it was collected. Factory regularly reviews and updates its data retention policy to ensure compliance with legal and regulatory requirements. |
Measures for ensuring accountability | Factory ensures accountability with data protection and security by providing regular employee training and maintaining binding employee policies. Factory also conducts regular assessments and audits of its security practices to ensure continuous compliance with its policies and the effectiveness of its security controls. |
Measures for allowing data portability and ensuring erasure | Under Factory’s data management policy, Factory provides measures for allowing data portability and erasure. On request, personal data can be exported in a common format and the data erasure requests are processed according to legal requirements and company rules. |
Technical and organizational measures of sub-processors | Factory enters into Data Processing Agreements with its Authorized Sub-Processors with data protection obligations substantially similar to those contained in this DPA. This includes the requirement for sub-processors to implement appropriate technical and organizational measures in line with those included in the policies above. |
Exhibit D: UK Addendum
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
Part 1: Tables
Table 1: Parties
Start Date | This UK Addendum shall have the same effective date as the DPA | |
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The Parties | Exporter | Importer |
Parties' Details | Customer | Factory |
Key Contact | See Exhibit B of this DPA | See Exhibit B of this DPA |
Table 2: Selected SCCs, Modules and Selected Clauses
SCC | |
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EU SCCs | The Version of the Approved EU SCCs which this UK Addendum is appended to as defined in the DPA and completed by Sections 6.2 and 6.3 of the DPA. |
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this UK Addendum is set out in:
Annex | |
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Annex 1A: List of Parties | As per Table 1 above |
Annex 2B: Description of Transfer | See Exhibit B of this DPA |
Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: | See Exhibit C of this DPA |
Annex III: List of Sub processors (Modules 2 and 3 only): | See Exhibit B of this DPA |
Table 4: Ending this UK Addendum when the Approved UK Addendum Changes
UK Addendum | |
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Ending this UK Addendum when the Approved UK Addendum changes | Importer [X] |
| Exporter |
| Neither Party |
Entering into this UK Addendum
- Each party agrees to be bound by the terms and conditions set out in this UK Addendum, in exchange for the other party also agreeing to be bound by this UK Addendum.
- Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making ex-UK Transfers, the Parties may enter into this UK Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this UK Addendum. Entering into this UK Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.
Interpretation of this UK Addendum
UK Addendum | Means this International Data Transfer Addendum incorporating the EU SCCs, attached to the DPA as Exhibit D. |
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EU SCCs | Means the version(s) of the Approved EU SCCs which this UK Addendum is appended to, as set out in Table 2, including the Appendix Information |
Appendix Information | Shall be as set out in Table 3 |
Appropriate Safeguards | Means the standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making an ex-UK Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR. |
Approved UK Addendum | Means the template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as may be revised under Section 18 of the UK Addendum. |
Approved EU SCCs | Means the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time). |
ICO | Means the Information Commissioner of the United Kingdom. |
ex-UK Transfer | Shall have the same definition as set forth in the DPA. |
UK | Means the United Kingdom of Great Britain and Northern Ireland. |
UK Data Protection Laws | Means all laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018. |
UK GDPR | Shall have the definition set forth in the DPA. |
Hierarchy
9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU
SCCs prevail over all related agreements between the parties, the parties
agree that, for ex-UK Transfers, the hierarchy in Section 10 below will
prevail.
- Where there is any inconsistency or conflict between the Approved UK
Addendum and the EU SCCs (as applicable), the Approved UK Addendum overrides
the EU SCCs, except where (and in so far as) the inconsistent or conflicting
terms of the EU SCCs provides greater protection for data subjects, in which
case those terms will override the Approved UK Addendum.
- Where this UK Addendum incorporates EU SCCs which have been entered into
to protect ex-EU Transfers subject to the GDPR, then the parties acknowledge
that nothing in the UK Addendum impacts those EU SCCs.
Incorporation and Changes to the EU SCCs
- 12. This UK Addendum incorporates the EU SCCs which are amended to the extent necessary so that:
a. together they operate for data transfers made by the data exporter to the
data importer, to the extent that UK Data Protection Laws apply to the data
exporter’s processing when making that data transfer, and they provide
Appropriate Safeguards for those data transfers;
b. Sections 9 to 11 above override Clause 5 (Hierarchy) of the EU SCCs; and
c. the UK Addendum (including the EU SCCs incorporated into it) is (1)
governed by the laws of England and Wales and (2) any dispute arising from
it is resolved by the courts of England and Wales.
- Unless the parties have agreed alternative amendments which meet the
requirements of Section 12 of this UK Addendum, the provisions of Section 15
of this UK Addendum will apply.
- No amendments to the Approved EU SCCs other than to meet the requirements
of Section 12 of this UK Addendum may be made.
- The following amendments to the EU SCCs (for the purpose of Section 12 of
this UK Addendum) are made:
a. References to the “Clauses” means this UK Addendum, incorporating the EU
SCCs;
b. In Clause 2, delete the words: “and, with respect to data transfers from
controllers to processors and/or processors to processors, standard
contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”,
c. Clause 6 (Description of the transfer(s)) is replaced with: “The details
of the transfers(s) and in particular the categories of personal data that
are transferred and the purpose(s) for which they are transferred) are those
specified in Annex I.B where UK Data Protection Laws apply to the data
exporter’s processing when making that transfer.”;
d. Clause 8.7(i) of Module 1 is replaced with: “it is to a country
benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR
that covers the onward transfer”;
e. Clause 8.8(i) of Modules 2 and 3 is replaced with: “the onward transfer
is to a country benefitting from adequacy regulations pursuant to Section
17A of the UK GDPR that covers the onward transfer;”
f. References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of
the European Parliament and of the Council of 27 April 2016 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)”
and “that Regulation” are all replaced by “UK Data Protection Laws”.
References to specific Article(s) of “Regulation (EU) 2016/679” are replaced
with the equivalent Article or Section of UK Data Protection Laws;
- g. References to Regulation (EU) 2018/1725 are removed;
h. References to the “European Union”, “Union”, “EU”, “EU Member State”,
“Member State” and “EU or Member State” are all replaced with the “UK”;
i. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is
replaced with “Clause 11(c)(i)”;
- j. Clause 13(a) and Part C of Annex I are not used;
k. The “competent supervisory authority” and “supervisory authority” are
both replaced with the “Information Commissioner”;
l. In Clause 16(e), subsection (i) is replaced with: “the Secretary of State
makes regulations pursuant to Section 17A of the Data Protection Act 2018
that cover the transfer of personal data to which these clauses apply;”;
m. Clause 17 is replaced with: “These Clauses are governed by the laws of
England and Wales”;
n. Clause 18 is replaced with: “Any dispute arising from these Clauses shall
be resolved by the courts of England and Wales.” A data subject may also
bring legal proceedings against the data exporter and/or data importer
before the courts of any country in the UK. The parties agree to submit
themselves to the jurisdiction of such courts.”; and
o. The footnotes to the Approved EU SCCs do not form part of the UK
Addendum, except for footnotes 8, 9, 10 and 11.
Amendments to the UK Addendum
- 16. The parties may agree to change Clauses 17 and/or 18 of the EU SCCs to refer to the laws and/or courts of Scotland and Northern Ireland.
- 17. If the parties wish to change the format of the information included in Part 1: Tables of the Approved UK Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
- 18. From time to time, the ICO may issue a revised Approved UK Addendum which:
- a. makes reasonable and proportionate changes to the Approved UK Addendum, including correcting errors in the Approved UK Addendum; and/or
- b. reflects changes to UK Data Protection Laws;
- The revised Approved UK Addendum will specify the start date from which the changes to the Approved UK Addendum are effective and whether the parties need to review this UK Addendum including the Appendix Information. This UK Addendum is automatically amended as set out in the revised Approved UK Addendum from the start date specified.
- If the ICO issues a revised Approved UK Addendum under Section 18 of this
UK Addendum, if a party will as a direct result of the changes in the Approved
UK Addendum have a substantial, disproportionate and demonstrable increase in:
and in either case it has first taken reasonable steps to reduce those costs
or risks so that it is not substantial and disproportionate, then that party
may end this UK Addendum at the end of a reasonable notice period, by
providing written notice for that period to the other party before the start
date of the revised Approved UK Addendum.
- 20. The parties do not need the consent of any third party to make changes to this UK Addendum, but any changes must be made in accordance with its terms.
Exhibit E: United States Privacy Law Exhibit
This United States Privacy Law Exhibit (“Exhibit”) supplements the DPA and includes additional information required by the CCPA and the VCDPA, in each case, as updated, amended or replaced from time to time. Any terms not defined in this Exhibit shall have the meanings set forth in the DPA and/or the Agreement.
A. California
1. Definitions
1.1 For purposes of this Section A, the terms “Business,” “Business
Purpose,” “Commercial Purpose,” “Consumer,” “Personal Information,”
“Processing,” “Sell,” “Service Provider,” “Share,” and “Verifiable Consumer
Request” shall have the meanings set forth in the CCPA.
1.2 All references to “Personal Data,” “Controller,” “Processor,” and “Data
Subject” in the DPA shall be deemed to be references to “Personal
Information,” “Business,” “Service Provider,” and “Consumer,” respectively,
as defined in the CCPA.
2. Obligations
2.1 The parties acknowledge and agree that Factory is a Service Provider for
the purposes of the CCPA (to the extent it applies) and Factory is receiving
Personal Information from Customer in order to provide the Services pursuant
to the Agreement, which constitutes a Business Purpose.
2.2 Customer shall disclose Personal Information to Factory only for the
limited and specified purposes described in Exhibit A to this DPA.
2.3 Factory shall not Sell or Share Personal Information provided by
Customer under the Agreement.
2.4 Factory shall not retain, use, or disclose Personal Information provided
by Customer pursuant to the Agreement for any purpose, including a
Commercial Purpose, other than as necessary for the specific purpose of
performing the Services for Customer pursuant to the Agreement, or as
otherwise set forth in the Agreement or as permitted by the CCPA.
2.5 Factory shall not retain, use, or disclose Personal Information provided
by Customer pursuant to the Agreement outside of the direct business
relationship between Factory and Customer, except where and to the extent
permitted by the CCPA.
2.6 Factory shall notify Customer if it makes a determination that it can no
longer meet its obligations under the CCPA.
2.7 Factory will not combine Personal Information received from, or on
behalf of, Customer with Personal Information that it receives from, or on
behalf of, another party, or that it collects from its own interaction with
the Consumer.
2.8 Factory shall comply with all obligations applicable to Service
Providers under the CCPA, including by providing Personal Information
provided by Customer under the Agreement the level of privacy protection
required by CCPA.
2.9 Factory shall only engage a new sub-processor to assist Factory in
providing the Services to Customer under the Agreement in accordance with
Section 4.1 of the DPA, including, without limitation, by: (i) notifying
Customer of such engagement via the notification mechanism described in
Section 4.1 of the DPA at least ten (10) days before enabling a new
Sub-Processor; and (ii) entering into a written contract with the
sub-processor requiring sub-processor to observe all of the applicable
requirements set forth in the CCPA.
3. Consumer Rights
4. Audit Rights
B. Virginia
1. Definitions
1.1 For purposes of this Section B, the terms “Consumer,” “Controller,”
“Personal data,” “Processing,” and “Processor” shall have the meanings set
forth in the VCDPA.
1.2 All references to “Data Subject” in this DPA shall be deemed to be
references to “Consumer” as defined in the VCDPA.
2. Obligations
- 2.1 The parties acknowledge and agree that Customer is a Controller and Factory is a Processor for the purposes of the VCDPA (to extent it applies).
- 2.2 The nature, purpose, and duration of Processing, as well as the types of Personal Data and categories of Consumers are described in Exhibit A to this DPA.
- 2.3 Factory shall adhere to Customer’s instructions with respect to the Processing of Customer Personal Data and shall assist Customer in meeting its obligations under the VCDPA by:
2.3.1 Assisting Customer in responding to Consumer rights requests under the
VCDPA as set forth in Section 7 of the DPA;
2.3.2 Complying with Section 5 (“Security of Personal Data”) of the DPA with
respect to Personal Data provided by Customer;
2.3.3 In the event of a Personal Data Breach, providing information
sufficient to enable Customer to meet its obligations pursuant to Va. Code §
18.2-186.6; and
2.3.4 Providing information sufficient to enable Customer to conduct and
document data protection assessments to the extent required by VCDPA.
- 2.4 Factory shall maintain the confidentiality of Personal Data provided by Customer and require that each person Processing such Personal Data be subject to a duty of confidentiality with respect to such Processing;
- 2.5 Upon Customer’s written request, Factory shall delete or return all Personal Data provided by Customer in accordance with Section 2.4 of the DPA, unless retention of such Personal Data is required or authorized by law or the DPA and/or Agreement.
- 2.6 In the event that Factory engages a new sub-processor to assist Factory in providing the Services to Customer under the Agreement, Factory shall enter into a written contract with the sub-processor requiring sub-processor to observe all of the applicable requirements of a Processor set forth in the VCDPA.
3. Audit Rights
3.1 Upon Customer’s written request at reasonable intervals, Factory shall,
as set forth in Sections 8.3-8.4 of the DPA, (i) make available to Customer
all information in its possession that is reasonably necessary to
demonstrate Factory’s compliance with its obligations under the VCDPA; and
(ii) allow and cooperate with reasonable inspections or audits as required
under the VCDPA.