Project Leo

Data Processing Addendum

Last Updated: July 10, 2024

This Data Processing Addendum (“DPA”) supplements the Customer Terms and Conditions (the “Agreement”) entered into by and between the Customer identified in an Agreement (“Customer”) and Project Leo, Inc. (“Project Leo”) By executing the Agreement, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws (defined below), in the name and on behalf of its Affiliates (defined below), if any. This DPA incorporates the terms of the Agreement, and any capitalized terms used herein but not otherwise defined in this DPA shall have the meaning set forth in the Agreement.

1. Definitions
   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.
   2. “Authorized Subprocessor” means a third-party who has a need to know or otherwise access Customer’s Personal Data to enable Project Leo 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.
   3. “Data Exporter” means Customer.
   4. “Data Importer” means Project Leo.
   5. “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 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; (vi) the Virginia Consumer Data Protection Act (“VCDPA”); (vii) the Colorado Privacy Act (“CPA”); (viii) the Connecticut Data Privacy Act (“CTDPA”), (ix) the Utah Consumer Privacy Act (“UCPA”); and (x) the Washington My Health My Data Act (“MHMDA”), 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.
   6. “Data Privacy Framework” means, as applicable, EU-U.S. Data Privacy Framework, the UK Extension to the EU-U.S. Data Privacy Framework, and/or the Swiss-U.S. Data Privacy Framework.
   7. “EU SCCs” means, as applicable, 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.
   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.
   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.
   10. “Project Leo Account Data” means personal data that relates to Project Leo’s relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer’s account and billing information of individuals that Customer has associated with its account. Project Leo Account Data also includes any data Project Leo may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.
   11. 1.10.“Project Leo Usage Data” means Service usage data collected and processed by Project Leo in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.
   12. 1.11.“Project Leo Account Data” means personal data that relates to Project Leo’s relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer’s account and billing information of individuals that Customer has associated with its account. Project Leo Account Data also includes any data Project Leo may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.
   13. 1.12.“Project Leo Usage Data” means Services usage data collected and processed by Project Leo in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.
   14. 1.13.“Services” shall mean providing Customer access to the Project Leo Platform as contemplated in the Agreement.
   15. 1.14. “Standard Contractual Clauses” means the EU SCCs and the UK SCCs.
   16. 1.15.“UK Addendum” has the meaning set forth in Exhibit D.
   17. “UK SCCs” means, as applicable, the EU SCCs, as amended by the UK Addendum.
2. Relationship of the Parties; Processing of Data
   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, Project Leo 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 Project Leo 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 Project Leo by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Project Leo regarding the processing of such Personal Data. Customer shall not provide or make available to Project Leo any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Project Leo from all claims and losses in connection therewith.
   2. Project Leo 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 the Project Leo is subject; in such a case, the Project Leo 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 Project Leo to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services.
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.
4. Following completion of the Services, at Customer’s choice, Project Leo 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, Project Leo 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 Project Leo 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 Project Leo to Customer only upon Customer’s request.
5. U.S. State Privacy Law Language. The Parties acknowledge and agree that the processing of personal information or personal data that is subject to the CCPA, VCDPA, CPA, CTDPA, UCPA, or MHMDA shall be carried out in accordance with the terms set forth in Exhibit E.
6. Confidentiality
7. Project Leo shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Project Leo’s confidentiality obligations in the Agreement. Customer agrees that Project Leo 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.
8. Authorized Subprocessors
   1. Customer acknowledges and agrees that Project Leo may (1) engage its Affiliates and the Authorized Subprocessors 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 Project Leo to engage subprocessors as necessary to perform the Services.
   2. A list of Project Leo’s current Authorized Subprocessors (the “List”) will be made available to Customer, either attached hereto, at a link provided to Customer, via email or through another means made available to Customer. Such List may be updated by Project Leo from time to time. Project Leo may provide a mechanism to subscribe to notifications of new Authorized Subprocessors and Customer agrees to subscribe to such notifications where available. At least ten (10) days before enabling any third party other than existing Authorized Subprocessors to access or participate in the processing of Personal Data, Project Leo will add such third party to the List and notify Customer via email. Customer may object to such an engagement by informing Project Leo within ten (10) days of receipt of the aforementioned notice to Customer, provided such objection is in writing and based on reasonable grounds relating to data protection. Customer acknowledges that certain subprocessors are essential to providing the Services and that objecting to the use of a subprocessor may prevent Project Leo from offering the Services to Customer.
   3. If Customer reasonably objects to an engagement in accordance with Section 4.2, and Project Leo 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 Project Leo. Discontinuation shall not relieve Customer of any fees owed to Project Leo under the Agreement.
   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 Project Leo, that third party will be deemed an Authorized Subprocessor for the purposes of this DPA.
   5. Project Leo will enter into a written agreement with the Authorized Subprocessor imposing on the Authorized Subprocessor data protection obligations comparable to those imposed on Project Leo under this DPA with respect to the protection of Personal Data. In case an Authorized Subprocessor fails to fulfill its data protection obligations under such written agreement with Project Leo, Project Leo will remain liable to Customer for the performance of the Authorized Subprocessor’s obligations under such agreement.
   6. If Customer and Project Leo 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 Project Leo 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 Subprocessors that must be provided by Project Leo 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 the Project Leo beforehand, and that such copies will be provided by the Project Leo only upon request by Customer.
9. Security of Personal Data.
10. 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, Project Leo 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 Project Leo’s technical and organizational security measures.
11. Transfers of Personal Data
12. The parties agree that Project Leo may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Project Leo’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 Project Leo transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Project Leo will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
13. Ex-EEA Transfers. The parties agree that ex-EEA Transfers will be made (i) pursuant to the Data Privacy Framework, or (ii) if the Data Privacy Framework does not apply or ceases to be available, pursuant to the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:
    1. Module One (Controller to Controller) of the EU SCCs apply when Project Leo is processing Personal Data as a controller pursuant to Section 9 of this DPA.
    2. Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Project Leo is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.
    3. Module Three (Processor to Subprocessor) of the EU SCCs apply when Customer is a processor and Project Leo is processing Personal Data on behalf of Customer as a subprocessor.
    4. Module Four (Processor to Controller) of the EU SCCs apply when Customer is a processor of Project Leo Usage Data and Project Leo processes Project Leo Usage Data as a controller.
14. For each module, where applicable the following applies:
    1. In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of subprocessor changes shall be as set forth in Section 4.2 of this DPA;
    2. All square brackets in Clause 13 are hereby removed;
    3. In Clause 17 (Option 1), the EU SCCs will be governed by Irish ****law;
    4. In Clause 18(b), disputes will be resolved before the courts of Dublin;
    5. Exhibit B to this DPA contains the information required in Annex I and Annex III of the EU SCCs;
    6. Exhibit C to this DPA contains the information required in Annex II of the EU SCCs; and
    7. By entering into this DPA, the parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes.
15. Ex-UK Transfers. The parties agree that ex-UK Transfers will be made (i) pursuant to the Data Privacy Framework, or (ii) if the Data Privacy Framework does not apply or ceases to be available, 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.
16. Transfers from Switzerland. The parties agree that transfers from Switzerland will be made (i) pursuant to the Data Privacy Framework, or (ii) if the Data Privacy Framework does not apply or ceases to be available, pursuant to the EU SCCs with the following modifications:
    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.
    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.
    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.
    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.