Data Processing Addendum

Data Processing Addendum

 

This Data Processing Addendum (“DPA”) forms an integral part of, and is subject to the Terms of Service, entered into by and between you, the customer (“Customer” or “Controller”) and Run:Ai Labs Ltd., and Run:Ai Labs USA Inc. (“Run:Ai” and the “Terms”). Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms.

Whereas, in connection with the performance of its obligations under the Terms, Run:Ai may Process Customer Personal Data (both as defined below) on behalf of the Customer; and 

Whereas, the parties wish to set forth the mutual obligations with respect to the processing of Customer Personal Data by Run:Ai;

Now therefore, intending to be legally bound, the parties hereby agree as follows:

  1. Definitions. In addition to capitalized terms defined elsewhere in this DPA, the following terms shall have the meanings set forth below:
  • Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  • Applicable Law” means Regulation 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 and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”), laws implementing or supplementing the GDPR.
  • Customer Personal Data” means any Personal Data Processed by Run:Ai on behalf of Customer pursuant to or in connection with the Terms;
  • Data Protection Laws” means Applicable Law and, to the extent applicable, the data protection or privacy laws of any other applicable country as agreed in writing between the parties, including in the US and Israel.
  • Standard Clauses” means the standard clauses for the transfer of Personal Data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010D0087&from=en;

  • Sub Processor” means any person (excluding an employee of Run:Ai or any Run:Ai Affiliate) appointed by or on behalf of Run:Ai or any Run:Ai Affiliate to Process Personal Data on behalf of the Customer in connection with the Terms; and
  • The terms “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing” and “Supervisory Authority” shall have the meanings ascribed to them in the GDPR.
  1. Processing of Customer Personal Data.
  • Run:Ai shall Process Customer Personal Data on Customer’s behalf and at Customer’s instructions as specified in the Terms and/or this DPA, including without limitation with regard to transfers of Customer Personal Data to a third country or international organization. Any other Processing shall be permitted only in the event that such Processing is required by any Data Protection Laws to which Run:Ai is subject. In such event, Run:Ai shall, unless prohibited by such Data Protection Laws on important grounds of public interest, inform Customer of that requirement before engaging in such Processing.
  • Customer instructs Run:Ai (and authorizes Run:Ai to instruct each Sub Processor) (i) to Process Customer Personal Data for the provision of the Platform, Solution and services, as detailed in the Terms (“Services”) and as otherwise set forth in the Terms and in this DPA, and/or as otherwise directed by Customer; and (ii) to transfer Customer Personal Data to any country or territory as reasonably necessary for the provision of the Services and in accordance with Applicable Law.
  • The details of the Processing of Customer Personal Data, as required by Article 28(3) of the GDPR are set forth in Schedule 1 (Details of Processing of Customer Personal Data), attached hereto.
  • To the extent that the Processor Processes Personal Data in countries outside of the European Economic Area that do not provide an adequate level of data protection, as determined by the European Commission or other adequate authority as determined by the EU, the Standard Contractual Clauses shall apply and shall be incorporated herein upon execution of this DPA by the parties. Appendix 1 attached hereto shall apply as Appendix 1 of the Standard Clauses and Appendix 2 shall apply as Appendix 2 of the Standard Clauses.
  1. Controller. Customer represents and warrants that it has and shall maintain throughout the term of the Terms and this DPA, all necessary rights to provide the Customer Personal Data to Run:Ai for the Processing to be performed in relation to the Services and in accordance with the Terms and this DPA. To the extent required by Data Protection Laws, Customer is responsible for obtaining any necessary Data Subject consents to the Processing, and for ensuring that a record of such consents is maintained throughout the term of the Terms and this DPA and/or as otherwise required under Data Protection Laws.
  2. Processor Employees. Run:Ai shall take reasonable steps to ensure that access to the Customer Personal Data is limited on a need to know and/or access basis and that all Run:Ai employees receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access to and use of Customer Personal Data.
  1. Security. Run:Ai shall implement appropriate technical and organizational measures to ensure an appropriate level of security of the Customer Personal Data, including, as appropriate and applicable, the measures referred to in Article 32(1) of the GDPR. In assessing the appropriate level of security, Run:Ai shall take into account the risks that are presented by the nature of the Processing and the information available to Run:Ai. 
  1. Personal Data Breach.
  • Run:Ai shall notify Customer without undue delay and, where feasible, not later than within 48 (forty eight) hours upon Run:Ai becoming aware of a Personal Data Breach affecting Customer Personal Data. In such event, Run:Ai shall provide Customer with reasonable and available information to assist Customer in meeting any obligations to inform Data Subjects or Supervisory Authorities of the Personal Data Breach as required under Applicable Law.
  • At the written request of the Customer, Run:Ai shall reasonably cooperate with Customer and take such commercially reasonable steps as are agreed by the parties or required under Applicable Law to assist in the investigation, mitigation and remediation of any Personal Data Breach.
  1. Sub Processing.
  • Customer authorizes Run:Ai to appoint (and permits each Sub Processor appointed in accordance with this Section 7 to appoint) Sub Processors in accordance with this Section 7.
  • Run:Ai may continue to use those Sub Processors already engaged by Run:Ai as of the date of this DPA.
  • Run:Ai may appoint new Sub Processors.With respect to each new Sub Processor, Run:Ai shall:
  • Prior to the Processing of Customer Personal Data by Sub Processor, take reasonable steps (for instance by way of reviewing privacy policies as appropriate) to ensure that Sub Processor is committed and able to provide the level of protection for Customer Personal Data required by this DPA; and
  • Ensure that the arrangement between Run:Ai and the Sub Processor is governed by a written contract, including terms that offer a materially similar level of protection for Customer Personal Data as those set out in this DPA and meet the requirements of Applicable Law.
  • Run:Ai shall remain fully liable to the Customer for the performance of any Sub Processor’s obligations.
  1. Data Subject Rights.
  • Customer shall be solely responsible for compliance with any statutory obligations concerning requests to exercise Data Subject rights under Data Protection Laws (e.g., for access, rectification, deletion of Customer Personal Data, etc.). Run:Ai shall, at Customer’s sole expense, use commercially reasonable efforts to assist Customer in fulfilling Customer’s obligations with respect to such Data Subject requests, as required under Data Protection Laws.
  • Upon receipt of a request from a Data Subject under any Data Protection Laws in respect to Customer Personal Data, Processor shall promptly notify Customer of such request and shall not respond to such request except on the documented instructions of Customer or as required by Data Protection Laws to which Run:Ai is subject, in which case Run:Ai shall, to the extent permitted by Data Protection Laws, inform Customer of such legal requirement prior to responding to the request.
  • Data Protection Impact Assessment and Prior Consultation. At Customer’s written request and expense, Run:Ai and each Sub Processor shall provide reasonable assistance to Customer with respect to any Customer Personal Data Processed by Run:Ai and/or a Sub Processor, with any data protection impact assessments or prior consultations with Supervisory Authorities or other competent data privacy authorities, as required under any Data Protection.
  1. Deletion or Return of Customer Personal Data. Run:Ai shall promptly and in any event within 60 (sixty) days of the date of cessation of provision of the Services to Customer involving the Processing of Customer Personal Data, delete, return, or anonymize all copies of such Customer Personal Data, provided however that Run:Ai may retain Customer Personal Data, as permitted by Applicable Law.
  2. Audit Rights. 
  • Subject to Sections 2 and ‎10.3, Run:Ai shall make available to an auditor mandated by Customer in coordination with Run:Ai, upon prior written request, such information reasonably necessary to demonstrate compliance with this DPA and shall allow for audits, including inspections, by such reputable auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by Run:Ai, provided that such third-party auditor shall be subject to confidentiality obligations.
  • Any audit or inspection shall be at Customer’s sole expense and shall be subject to the terms of the Agreement, and subject to Run:Ai’s obligations to third parties, including with respect to confidentiality.
  • Customer and any auditor on its behalf shall use best efforts to minimize or avoid causing any damage, injury or disruption to Run:Ai’s premises, equipment, employees and business. Customer and Run:Ai shall mutually agree upon the scope, timing and duration of the audit or inspection and the reimbursement rate, for which Customer shall be responsible. Run:Ai need not give access to its premises for the purposes of such an audit or inspection:
  • to any individual unless he or she produces reasonable evidence of identity and authority;
  • if Run:Ai was not given a prior written notice of such audit or inspection;
  • outside of normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis; or
  • for the purposes of more than one (1) audit or inspection in any calendar year, except for any additional audits or inspections which:
  • Customer reasonably considers necessary because of genuine concern as to Run:Ai’s compliance with this DPA; or
  • Customer is required to carry out by Applicable Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Applicable Law in any country or territory, where Customer has identified its concerns or the relevant requirement or request in its prior written notice to Run:Ai of the audit or inspection.
  • Processor shall immediately inform Customer if, in its opinion, an instruction received under this DPA infringes the GDPR or other applicable Data Protection Laws.
  1. Indemnity. Customer shall indemnify and hold Run:Ai harmless against all claims, actions, third party claims, losses, damages and expenses incurred by Run:Ai and arising directly or indirectly out of or in connection with a breach of this DPA and/or the Data Protection Laws by Customer.
  1. General Terms.
  • Governing Law and Jurisdiction.
  • The parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Terms with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity.
  • This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Terms.
  • Order of Precedence.
  • Nothing in this DPA reduces Run:Ai’s obligations under the Terms in relation to the protection of Customer Personal Data or permits Run:Ai to Process (or permit the Processing of) Customer Personal Data in a manner that is prohibited by the Terms.
  • This DPA is not intended to, and does not in any way limit or derogate from Customer’s obligations and liabilities towards Run:Ai under the Terms and/or pursuant to Data Protection Laws or any law applicable to Customer  in connection with the collection, handling and use of Customer Personal Data by Customer or other processors or their sub processors, including with respect to the transfer or provision of Customer Personal Data to Run:Ai and/or providing access thereto to Run:Ai.
  • Subject to this Section 13.2, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the Terms and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail. In the event of inconsistencies between the provisions of this DPA and the Standard Clauses (to the extent they apply), the Standard Clauses shall prevail.
  • Changes in Data Protection Laws.
  • Customer may, by at least 45 (forty five) calendar days’ prior written notice to Run:Ai, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under any Data Protection Laws in order to allow Customer Personal Data to be Processed (or continue to be Processed) without breach of that Data Protection.
  • If Customer gives notice with respect to its request to modify this DPA under Section ‎3.1, (i) Run:Ai shall make commercially reasonable efforts to accommodate such modification request and (ii) Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Run:Ai to protect Run:Ai against additional risks, or to indemnify and compensate Run:Ai for any further steps and costs associated with the variations made herein.
  • Severance. Should any provision of this DPA be held invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein. 

Schedule 1

Details of Processing of Customer Personal Data

This Schedule 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.

Subject matter and duration of the Processing of Customer Personal Data.

The subject matter and duration of the Processing of the Customer Personal Data are set out in the Terms, in Run:Ai’s Privacy Notice (“Privacy Notice”), and this DPA.

The nature and purpose of the Processing of Customer Personal Data:

Providing the Platform and rendering Services to the Customer, as detailed in the Terms and the Privacy Notice.

The types of Customer Personal Data to be Processed are as follows:

As detailed in the Privacy Notice.

The categories of Data Subject to whom the Customer Personal Data relates to are as follows:

Data Subjects who are employees, consultants, or agents of the Customer and use the Run:Ai’s Platform.

The obligations and rights of Controller.

The obligations and rights of Customer are set out in the Terms and this DPA.

Appendix 1

Appendix 1 to the Standard Contractual Clauses

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

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

Data exporter

The data exporter is:

Customer who has entered into the DPA to which this is attached. 

Data importer

The data importer is:

Run:Ai, Inc. and Run:Ai Labs Ltd., providing a management platform for AI infrastructure

Data subjects

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

As set out in Schedule 1 to the DPA

Categories of data

As set out in Schedule 1 to the DPA

Special categories of data (if appropriate)

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

None 

Processing operations

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

As set out in Schedule 1 to the DPA

 

Appendix 2

Appendix 2 to the Standard Contractual Clauses

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

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

Run:Ai uses firewalls to protect our internet connection This will be your first line of defense against an intrusion from the internet.

Run:Ai uses the most appropriate secure settings for its devices and softwareMost hardware and software will need some level of set-up and configuration in order to provide effective protection.

Run:Ai controls who has access to your data and services Restrict access to your system to users and sources you trust.

Run:Ai protects itself from viruses and other malware.

Run:Ai keeps its software and devices up-to-date. Hardware and software needs regular updates to fix bugs and security vulnerabilities.

Run:Ai regularly backup its data. Regular backups of your most important data will ensure it can be quickly restored in the event of disaster or ransomware infection.