Data Processing Agreement

This Data Processing Agreement (“DPA“) is incorporated into and made a part of written agreement between Astronomer, Inc. (the “Data Processor” or the “Processor”) and Customer (together as the “Parties”) that references this DPA (“Agreement”), unless superseded by a written DPA. This DPA is effective as of the effective date of the Agreement.

WHEREAS

(A) The Customer acts as a Data Controller.

(B) The Customer wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.

(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the 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, and repealing Directive 95/46/EC (General Data Protection Regulation).

(D) The Parties wish to document their rights and obligations.

IT IS AGREED AS FOLLOWS:

1. Definitions and Interpretation

• 1.1. Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
  • 1.1.1 “Agreement” means this DPA and the written master subscription agreement (“MSA”) with Astronomer, Inc incorporating this DPA, and all associated terms of service, schedules, SOWs, and order forms;
  • 1.1.2. “Astronomer Control Plane” has the meaning given to it in the Agreement, or if not therein defined, means the elements of the Service residing within the Astronomer Cloud Environment, including without limitation the user interface of the Service;
  • 1.1.3. “Contracted Processor” means a Subprocessor;
  • 1.1.4. “Cloud Environment” has the meaning given to it in the Agreement, or if not therein defined, means a cloud computing or other storage resource operated by or for Astronomer or Customer, as the case may be, pursuant to this Agreement;
  • 1.1.5. “Customer Personal Data” means any Personal Data Processed by means of the Service by the Data Processor or a Contracted Processor on behalf of Customer pursuant to or in connection with the Agreement;
  • 1.1.6. “Data Plane” has the meaning given to it in the Agreement, or if not therein defined, means the portion of a Cloud Environment in which Customer Data is processed as part of the Service;
  • 1.1.7. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country or jurisdiction;
  • 1.1.9. “EU Data Protection Laws” means the GDPR and laws implementing or supplementing the GDPR as amended, replaced or superseded from time to time;
  • 1.1.10. “GDPR” means EU General Data Protection Regulation 2016/679;
  • 1.1.11. “CCPA” means California Consumer Privacy Act;
  • 1.1.12. “VCDPA” means Virginia Consumer Data Protection Act;
  • 1.1.13. “CTDPA” means Connecticut’s Act Concerning Data Privacy;
  • 1.1.14. “CPA” means Colorado Privacy Act;
  • 1.1.15. “PHI Data” means any personal health data that might be covered under HIPAA/HITECH ACT.
  • 1.1.16. “Service” has the meaning given to it in the Agreement, or if not therein defined, means the subscription software services to which Customer is subscribed.
  • 1.1.17. “Subprocessor” means any third party appointed by or on behalf of Processor to process Personal Data on behalf of the Customer in connection with the Agreement.
• 1.2. The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Customer Personal Data

• 2.1. Processor shall:
  • 2.1.1. comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
  • 2.1.2. not Process Customer Personal Data other than on the relevant Customer’s documented instructions.
• 2.2. The Customer instructs Processor to process Customer Personal Data to perform the Service as described in the Agreement, in accordance with this DPA.

3. Processor Personnel

• 3.1. Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of Processor or any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Applicable Laws, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

• 4.1. Considering 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, Processor shall, in relation to the Customer Personal Data, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
• 4.2. In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
• 4.3. Because Customer rather than Astronomer chooses what Customer Personal Data may be processed within the Data Plane in the Cloud Environment, and Processor does not have any access or means to provision such environment with security measures, Customer acknowledges its obligation to implement, maintain and review relevant and sufficient security and organizational measures to protect Customer Personal Data in the Data Plane environment.
• 4.4. The parties shall comply with the Security Addendum found at: https://www.astronomer.io/legal/security. Astronomer may update the Security Addendum from time to time to ensure that its technical and organizational measures maintain an appropriate level of security, provided that such modifications will not materially or substantially degrade Astronomer’s security commitments or impose additional obligations upon Customer.

5. Subprocessing

• 5.1. Customer agrees that Astronomer may appoint Subprocessors to assist it in providing the Service by processing Customer Personal Data solely for the purpose of providing the Service.
• 5.2. Processor shall not appoint (or disclose any Customer Personal Data to) any Subprocessor without providing reasonable notice to the Customer, not less than 30 days prior to the date on which the Subprocessor shall commence processing Customer Personal Data.
• 5.3. An up-to-date list of all Subprocessors may be obtained by emailing privacy@astronomer.io or visiting https://trust.astronomer.io/.

6. Data Subject Rights

• 6.1. Considering the nature of the Processing, Processor shall assist the Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Customer obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
• 6.2. Processor shall:
  • 6.2.1. promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
  • 6.2.2. ensure that it does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request; and
  • 6.2.3. adhere to the principles of data minimization and purpose limitation; and
  • 6.2.4. commit to collecting only the personal data that is necessary for the specific purposes for which it is processed.
  • 6.2.5. not process personal data in a way that is incompatible with these purposes unless the consumer provides informed consent; and
  • 6.2.6. commit to retaining personal data only for as long as it serves the purpose for which it was collected;
  • 6.2.7. to delete data once its purpose is no longer relevant;
  • 6.2.8. not sell personal data.
• 6.3. Customers shall make Data Subject Rights requests through dsr@astronomer.io.
• 6.4. We commit to conducting data protection assessments for each of our processing activities that present a heightened risk of harm to consumers. These assessments will evaluate the benefits that can be reasonably expected from the processing, the risks to the rights of the consumer associated with the processing, and the measures implemented by us to minimize the risks. We will make the results of these assessments available to governmental authorities upon request.
• 6.5. We will not discriminate against a consumer for exercising any of their rights. Astronomer will not deny consumers goods or services, charge different prices or rates for goods or services, provide a different level of quality of goods or services, or suggest that the consumer may receive a different price or rate for goods or services or a different level of quality of goods or services due to the exercising of rights.

7. Additional Rights Under the CCPA

• 7.1. Right to Know: Consumers have the right to request and obtain from us, once a year and free of charge.
• 7.2. Right to Delete: Consumers have the right to request the deletion of any personal information which we have collected from them. Upon receiving a verified request, we will delete the consumer’s personal information from our records, unless retaining the information is necessary for us or our service providers to complete a transaction, provide goods or services requested by the consumer, comply with a legal obligation, or other exceptions as specified in the CCPA.

8. Additional Rights Under the VCDPA

• 8.1. Consumers have the right to access their personal data, to correct inaccuracies in their personal data, to delete personal data provided to or obtained by us, and to obtain a copy of their personal data in a portable and readily usable format.
• 8.2. Consumers have the right to opt out of the processing of their personal data for the purposes of targeted advertising, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.

9. Additional Rights Under the CPA

• 9.1. Consumers have the right to access their personal data, to correct inaccuracies in their personal data, to delete personal data provided to or obtained by us, and to obtain a copy of their personal data in a portable and readily usable format.
• 9.2. Consumers have the right to opt out of the processing of their personal data for the purposes of targeted advertising, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.

10. Personal Data Breach

• 10.1. Processor shall notify Customer without undue delay upon Processor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
• 10.2. Processor shall cooperate with the Customer and take reasonable commercial steps as directed by Customer to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.

11. Data Protection Impact Assessment and Prior Consultation

• 11.1. Processor shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, Processor and the Contracted Processors.

12. Deletion or return of Customer Personal Data

• 12.1. Subject to this section 13, Processor shall promptly and in any event within 30 days of the date of cessation of any Service involving the Processing of Customer Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Customer Personal Data after providing Customer with sufficient notice and opportunity to receive a copy of such Customer Personal Data.

13. Audit Rights

• 13.1. Subject to section 14, Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by Processor and the Contracted Processors.
• 13.2. Information and audit rights of the Customer only arise under section 13.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
• 13.3. Processing and Security Assessment. Notwithstanding the generality of the above, from time to time, Customer may request that Processor participate in an assessment that examines Processor’s processing and security of Customer data. During such assessment, Processor will respond to requests by Customer or its delegate, which may include completing a questionnaire and providing interviews, information, artifacts, and documentation as reasonably requested. Processor represents and warrants that Processor’s submitted responses to such assessment(s), as well as future assessments, are complete and accurate. Processor understands that Customer is relying on the information in the assessment(s) when entering into and continuing under the Agreement, and such information may be considered as a commitment to certain measures. Each Party will bear its own costs to complete the assessment.
• 13.4. Remediation. If Customer or any competent public authority in their reasonable opinion deem that Processor is failing to comply with any of its obligations under this DPA or Data Protection Laws, Processor will, within a reasonable timeframe established by Customer, remediate the identified deficiencies at Processor’s sole cost and expense and implement appropriate measures to ensure that such deficiencies do not arise in the future. Customer has the right to take reasonable and appropriate steps to ensure compliance with Data Protection Laws and the terms of the Agreement, including efforts to stop unauthorized or unlawful processing of Customer Personal Data.

14. Data Transfer

• 14.1. The Processor may transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA), if Processor deems it necessary in order to provide the Service to Customer. If Customer Personal Data processed under this Agreement is transferred by Processor or a Contracted Processor from a country within the European Economic Area, Switzerland, UK, Israel or Turkey to a third country not considered adequate under applicable Data Protection Laws, then Customer’s prior written approval shall be required and Processor shall ensure that the Customer Personal Data are adequately protected (through the implementation of a valid transfer mechanism and supplemental measures, as relevant).
  1. Local Laws Affecting Compliance with this DPA. Processor agrees, represents and warrants that it has no reason to believe that the legislation applicable to it, or its Subprocessors, including in any country to which Processor or a Subprocessor transfers personal data, prevents it from fulfilling the instructions received from Cusotmer and its obligations under this DPA, and in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by this DPA, Processor will promptly notify the change to Customer, in which case Customer is entitled to suspend the transfer of Personal Data to Processor and/or terminate the Agreement. Processor further certifies that (i) Processor or its affiliates as applicable have not purposefully created back doors or similar programming that could be used to access Processor systems and/or Customer Personal Data; (ii) Processor or its affiliates as applicable have not purposefully created or changed their business processes in a manner that facilitates access to Customer Personal Data or Process systems; and (iii) the national law(s) or government policy/ies to which Processor or its affiliates as applicable are subject do not require Processor and its affiliates to create or maintain back doors or to facilitate access to personal data or Processor systems or, where Customer Personal Data is encrypted, for Processor and its affiliates to be in possession or to hand over the encryption keys.

15. General Terms

• 15.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that: (a) disclosure is required by law;
  (b) the relevant information is already in the public domain.
• 15.2. Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email (with confirmation of receipt) to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.
• 15.3. Modification. From time to time, Astronomer may propose modifications to this DPA. Astronomer will and shall notify Customer of the proposed changes through communications via Customer’s Account, email or other means. All such modifications shall be subject to the mutual agreement of the Parties.
• 15.4. Applicability of Certain Rights. The rights and provisions mentioned under the CCPA (California Consumer Privacy Act), CPA (Colorado Privacy Act), and VCDPA (Virginia Consumer Data Protection Act) apply solely to residents of the respective states as mandated by the laws of those states. The parties acknowledge that the applicability of these rights is limited to the residents of California, Colorado, and Virginia, respectively.

16. Governing Law and Jurisdiction

• 16.1. Except to the extent otherwise specifically required by Data Protection Laws, the provisions of the Agreement for governing law and resolution of disputes shall apply to this DPA.

17. Conflict

• 17.1. The terms and conditions of this DPA and any relevant MSA are intended to complement each other. To the extent they conflict, the terms and conditions of this DPA will control over the MSA.