Last updated: August 14, 2024 (see previous version).
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING THE SUBSCRIPTION SERVICES (DEFINED BELOW).
THE TERMS AND CONDITIONS OF THIS AGREEMENT (DEFINED BELOW) GOVERN USE OF THE SUBSCRIPTION SERVICES UNLESS YOU AND METABASE, INC. (“METABASE”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE SUBSCRIPTION SERVICES.
Metabase is willing to provide the Subscription Services to you only upon the condition that you accept all the terms contained in the Hosting Terms of Service attached as Exhibit A (“Terms”) and the Data Processing Addendum attached as Exhibit B (collectively, this “Agreement”). By clicking on the checkbox marked “Subscribe” on the registration page or by accessing or using the Subscription Services, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not accept this Agreement and you may not use the Subscription Services.
1. Definitions.
“Customer Application Data” means data input into the Subscription Services by you and your Authorized Users. Customer Application Data includes the log-in credentials for each Authorized User and queries submitted by your Authorized Users.
“Customer Business Data” means the data on your external databases that you and your Authorized Users retrieve or access in the course of using the Subscription Services.
“Customer Data” means, collectively, the Customer Application Data, the Customer Business Data and the Customer Metadata.
“Customer Metadata” means data that describes the Customer Data. Customer Metadata may include data such as the number of datasets in a database, the average data size of a dataset, what database software a user connects to or Metabase-generated descriptions of a given dataset.
2. Subscription Services.
2.1 Subscription Services. Subject to your compliance with the terms and conditions of this Agreement, with effect from the Services Start Date and thereafter during the Subscription Term (as defined below): (i) Metabase will: provide you with the Subscription Services, and you may access and use the Subscription Services solely for your internal business purposes within the usage limits specified in the Order; and (ii) Metabase will provide the support services applicable to the service tier that you have subscribed to, in accordance with Metabase’s policies from time to time.
2.2 Authorized Users. The Subscription Services may only be accessed and used by your employees and independent contractors, who may only access and use the Subscription Services for the sole purpose of performing their job functions or services (as applicable) for you (“Authorized Users”), and only up to the number of Authorized Users specified in the Order. The log-in credentials for each Authorized User are for a single individual only and cannot be shared or used by more than 1 person. You are responsible for all actions taken under an Authorized User’s account, whether or not such action was taken or authorized by the Authorized User.
2.3 Benefit of Third Parties. If your plan includes embedding as noted in the Order or in our pricing page then subject to your compliance with the terms and conditions of this Agreement (including payment of the applicable fees in accordance with Section 4), Metabase grants to Company a non-exclusive, non-transferable, non-sublicenseable, worldwide limited license to operate the Services within a Company Application (identified on the Order Form) and allow the end-customers of Company to access the Services as a part of the Company Application. Any use by Company’s end-customers must be subject to an end user license agreement that protects Metabase to the same extent this Agreement protects Metabase (“License Agreement”). The exact type of embedding you can do depends on your subscription level, as detailed on our pricing page and in our documentation. If your plan requires you to display the “Powered by Metabase” logo you may not remove or cover it.
2.4 Distribution License. If the Order authorizes a “Right to Distribute,” then subject to your compliance with the terms and conditions of this Agreement (including payment of the applicable fees in accordance with Section 3), Metabase grants to you a non-exclusive, non-transferable, non-sublicenseable, worldwide limited license to distribute the Software to your end-customers solely (a) as embedded in the Company Application (provided your end-customer executes an agreement with Company to protect Metabase and the Software to the same extent as this Agreement), (b) for use and operation by your end-customer of the Company Application and not for further distribution and (c) for the use by end users of the Company Application (“End Users”) provided the End User executes a License Agreement.
2.5 Restrictions. You, on behalf of yourself and your Authorized Users, agree not to: (1) copy, modify, alter, decompile or reverse engineer the Subscription Services (including the source code, object code, and underlying structure and algorithms thereof); (2) resell or otherwise make the Subscription Services available to any third party; (3) use the Subscription Services either directly or indirectly to support any activity that is illegal or that violates the proprietary rights of others; (4) interfere with or disrupt the Subscription Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services); (5) deactivate, impair, or circumvent any security or authentication measures of the Subscription Services; (6) use the Subscription Services or its output to train, calibrate, or validate, in whole or in part any other systems, programs or platforms, or for benchmarking, software-development, or other competitive purposes; or (7) permit any third parties to do any of the above. You are responsible for the use of the Subscription Services by your Authorized Users, and their compliance with this Agreement.
2.6 Attached Data Warehouse. If you have purchased a license, or otherwise obtained the right from Metabase, to access the Attached Data Warehouse (as defined in Exhibit C, attached hereto), which is data storage accessed in connection with the Subscription Services, then Exhibit C will apply and you agree to be fully bound by Exhibit C.
3. Customer Data.
3.1 Customer Data. As between you and Metabase, you own all worldwide right, title and interest in and to all Customer Data. You grant to Metabase a non-exclusive license to access and use the Customer Data to provide the Subscription Services to you and your Authorized Users. In addition, you grant to Metabase a non-exclusive license to access and use the Customer Application Data and Customer Metadata (but not the Customer Business Data) to develop and improve Metabase’s products and services (including the Subscription Services) as set forth in more detail in the Metabase Privacy Policy at: metabase.com/hosting/privacy_policy. You acknowledge and agree that your use of the Subscription Services is subject to Metabase’s Privacy Policy. You are solely responsible for the content of all Customer Data. You represent and warrant that (1) you have, and will continue to have, during the term of this Agreement, all necessary rights, authority and licenses for the access to and use of the Customer Data as contemplated by this Agreement and the software and systems on or through which you have requested us to provide services; and (2) Metabase’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between you and any third party. The Data Processing Addendum set forth in Exhibit B is hereby incorporated herein by reference.
3.2 Security; Backup. Metabase will maintain (and will require its third party service providers to maintain) reasonable administrative, physical and technical safeguards intended to protect the Customer Data against accidental loss and unauthorized access or disclosure, in accordance with applicable industry standards. Metabase will follow its standard archival procedures for Customer Data. In the event of any loss or corruption of Customer Data, Metabase will use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Metabase. Metabase will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by you or by any Authorized User or third party. METABASE’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 3.2 WILL CONSTITUTE METABASE’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA IN CONNECTION WITH THE SUBSCRIPTION SERVICES.
4. Subscription Fees & Payment.
4.1 Subscription Fees. You will pay the fees and charges stated in the Order (“Subscription Fees”) for use of the Subscription Services. The base Subscription Fee for each Subscription Term will be specified in the Order (“Base Subscription Fee”) and is payable and charged at the beginning of each Subscription Term.
4.2 Verification; True-Up. If specified in the Order, Subscription Fees will be calculated based on units of use of the Subscription Services (such as number of users or amount of data processed) (each, a “Unit”). Where applicable, the Base Subscription Fee includes the number of Units specified in the Order for each Subscription Term. Metabase may create and maintain logs reflecting usage of the Subscription Services under your account. Metabase may access and review such logs from time to time to verify your compliance with applicable usage limitations and other terms of this Agreement, and Metabase may use such logs to prevent or limit unauthorized use of the Subscription Services. Without limiting any of Metabase’s other rights or remedies, if your actual usage of the Subscription Services exceeds the Units covered by the Base Subscription Fee prepaid by you for a Subscription Term, Metabase will charge you for the difference between the Units covered by the Base Subscription Fee and the number of Units actually used by you during that Subscription Term (“Additional Units Fee”).
4.3 Payment Terms. If you have provided us with credit card details, we will charge that credit card: (i) at the start of each Subscription Term, for the Base Subscription Fee; and (ii) within thirty (30) days of our invoice for any Additional Units Fee payable by you (if any). We will issue a payment confirmation to you with respect to any charges we have made to your credit card. If we issue an invoice to you, all invoices are payable as specified in the Payment Terms section of the Order (or if not so specified, within thirty (30) days of receipt). All amounts are stated and shall be paid in US dollars and are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to us, other than any taxes based on Metabase’s net income. All past due amounts will incur interest at a rate of 1% per month or the maximum rate permitted by law, whichever is less. Except as expressly set forth in this Agreement, all payments, once paid, are non-refundable.
5. TERM AND TERMINATION
5.1 Subscription Term. This Agreement will commence on the Effective Date and, unless terminated earlier by either party in accordance with the terms of this Agreement, will continue for the Initial Subscription Term specified in the Order. At the end of such Initial Subscription Term and each renewal subscription term thereafter, subject always to timely payment of the Subscription Fees, this Agreement will automatically renew for additional renewal subscription terms having the duration specified in the Order (or if no renewal term length is stated in the Order, having the same duration as the Initial Subscription Term), unless either party provides 15 days’ prior written notice of non-renewal. Such Initial Subscription Term and each renewal subscription term are each individually referred to herein as a “Subscription Term.”
5.2 Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 10 days after written notice thereof. If you terminate this Agreement for breach, Metabase will refund the unused portion of the Subscription Fees that you had paid for the Subscription Services for the remainder of the then-current Subscription Term (if any).
5.3 Additional Remedies. Without limiting other available remedies, Metabase reserves the right to suspend or disable your and your Authorized Users’ access to the Subscription Services if any undisputed amounts payable under this Agreement more than 30 days past due. Metabase also reserves the right to suspend or disable access to the Subscription Services if Metabase determines (in its discretion) that: (1) your or any Authorized User’s use of the Subscription Services disrupts, harms, or poses a security risk, or may cause harm, in each case to Metabase, the Subscription Services or any third party; or (2) you or any Authorized User has used, or is using, the Subscription Services in breach of this Agreement.
5.4 Effect of Termination. Upon any expiration or termination of this Agreement, your (and your Authorized Users’) right to access and use the Subscription Services will automatically terminate, except that the Authorized Users will be permitted to access the Subscription Services for 30 days following termination solely to download any Customer Data stored thereon. Metabase will have no liability for any costs, losses, damages, or liabilities arising out of or related to Metabase’ exercise of its termination rights under this Agreement. Any payment obligations as of the expiration or termination will remain in effect. The obligations and provisions of Sections 2.3, 3, 4, 5.4 and Sections 6 through 13 (inclusive) will survive any expiration or termination of this Agreement.
6. Confidentiality.
Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked or identified as “confidential” at the time of disclosure, or that is of any nature described in this Agreement as confidential (“Confidential Information”) in connection with the use and/or performance of the Subscription Services. Metabase Confidential Information includes the non-public portions of the Subscription Services and any related documentation and pricing information. During the term of this Agreement and for three (3) years thereafter, each party agrees to take reasonable precautions to protect the disclosing party’s Confidential Information from unauthorized disclosure, not to use such Confidential Information except as authorized or as necessary to perform its obligations under this Agreement and to not disclose (without the disclosing party’s prior authorization, including any such authorization given under this Agreement) to any third person any such Confidential Information (other than on a need to know basis to the receiving party’s employees, consultants and service providers who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as this Agreement) or as specifically permitted under this Agreement. Confidential Information does not include any information that the receiving party can show: (1) through no fault of the receiving party, is or becomes generally available to the public, or (2) was in its possession or was known prior to receipt from the disclosing party, or (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed without use of any Confidential Information of the disclosing party. The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed). Upon termination of this Agreement will promptly return to the disclosing party or destroy all copies of the disclosing party’s Confidential Information in its possession or control, except that the receiving party may retain one (1) copy of the disclosing party’s Confidential Information for the sole purpose of monitoring its compliance under this Agreement. Notwithstanding the foregoing, upon termination, Metabase will not retain the Customer Data except as necessary to comply with Section 5.4.
7. OWNERSHIP.
7.1 Metabase IP. As between Metabase and you, Metabase owns all worldwide right, title and interest in and to the Subscription Services and the Usage Data, including all Intellectual Property Rights therein. For purposes of this Agreement, “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
7.2 Feedback. If you provide any ideas, suggestions, or recommendations regarding the Subscription Services (“Feedback”), Metabase will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, you grant to Metabase a worldwide, perpetual, irrevocable, fully-paid, royalty-free, nonexclusive license to use and exploit in any manner such Feedback.
7.3 Usage Data. You acknowledge and agree that Metabase may generate de-identified data with respect to the use and performance of the Subscription Services and may retain and use such de-identified usage and performance data for its internal business purposes, such as developing and improving Metabase’s products and services (including the Subscription Services).
8. NO WARRANTY.
THE SUBSCRIPTION SERVICES ARE PROVIDED AS “AS IS,” WITHOUT WARRANTY OF ANY KIND. METABASE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM METABASE OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. METABASE DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. You assume sole responsibility and liability for results obtained from the use of the Subscription Services and for conclusions drawn from such use. Metabase will have no liability for any claims, losses, or damages caused by errors or omissions in any Customer Data or any results produced by the Subscription Services based upon Customer Data.
9. Indemnification.
9.1 Metabase Indemnity. Metabase will defend, indemnify and hold you harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees and other professional fees) awarded against you in a final non-appealable judgment or that are agreed to in settlement, to the extent based on a third-party claim that the Subscription Services, as provided by Metabase to you, infringes any patent, copyright or misappropriates any trade secret of any third party; provided that you: (a) promptly notify Metabase in writing of any such claim; (b) grant Metabase sole control of the defense and settlement of the claim; and (c) provide Metabase, at Metabase’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. You have the right to retain counsel, at your expense, to participate in the defense or settlement of any claim. Metabase will not be liable for any settlement or compromise that you enter into without Metabase’s prior written consent.
9.2 Exclusions. Metabase’s obligation to indemnify you pursuant to Section 9.1 will not apply to the extent any claim results from or is based on: (i) any combination, operation or use of the Subscription Services with any product, system, device, method or data not provided by Metabase, if such claim would have been avoided but for such combination, operation or use; (ii) modification of the Subscription Services by anyone other than Metabase, if a claim would have been avoided but for such modification; (iii) your failure to install and use any upgrades to the Subscription Services furnished by Metabase, if such claim could have been avoided by such installation and use of such upgrades; or (iv) use of the Subscription Services other than in accordance with this Agreement. You will indemnify, defend and hold Metabase harmless and will pay any costs damages and reasonable attorney’s fees in connection with any third party claim to the extent it results from any of the foregoing activities in this Section 9.2, provided that Metabase (a) promptly notifies you in writing of any such claim; (b) grants you sole control of the defense and settlement of the claim; and (c) provides you, at your expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
9.3 Injunction. If your use of the Subscription Services is, or in Metabase’s opinion is likely to be, enjoined due to the type of claim specified in Section 9.1, then Metabase will at its sole option and expense: procure for you the right to continue using the Subscription Services under the terms of this Agreement; (ii) replace or modify the Subscription Services to make it non-infringing and of equivalent functionality; or (iii) if Metabase is unable to accomplish either (i) or despite using its reasonable efforts, then Metabase may terminate your rights and Metabase’s obligation under this Agreement with respect to such Subscription Services and refund to you a pro-rata portion of the prepaid license fees you paid for such Subscription Services.
9.4 Customer Indemnity. Customer agrees to defend and indemnify Metabase, at Customer’s expense, against any legal action brought against Metabase by a third party to the extent that it is based on a claim that Customer Data or Customer Application, or the combination of the Subscription Services with any other software, hardware, materials or technology used by Customer, infringes a patent, copyright or trademark of such third party or makes unlawful use of such party’s trade secret, and Customer shall pay any settlement of such claim or final judgment against Metabase in any such action if attributable to any such claim. However, such defense and payments are subject to the conditions that Metabase must: (i) notify Customer promptly in writing of such claim, (ii) permit Customer to have sole control of the defense, compromise or settlement of such claim, including any appeals, and (iii) fully cooperate with Customer, at Customer’s expense, in the defense or settlement of such claim.
9.5 Sole Remedy. THIS SECTION 9 SETS FORTH METABASE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
10. Limitation of Liability.
IN NO EVENT WILL METABASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, WHETHER OR NOT FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT METABASE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. METABASE’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO METABASE BY YOU FOR THE SUBSCRIPTION SERVICES DURING THE 12 MONTH PERIOD PRIOR TO THE FIRST CLAIM FOR LIABILITY HEREUNDER. The parties agree that the limitations and exclusions contained in this Section 10 and elsewhere in this Agreement will (a) not apply to any claims under indemnity and (b) survive and apply even if any exclusive remedy specified in this Agreement is found to have failed of its essential purpose.
11. U.S. Government End Users.
The Subscription Services are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If access to the Subscription Services is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Subscription Services will be only those specified in this Agreement.
12. Force Majeure.
Metabase will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its reasonable control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, unavailability of supply or power outage, hackers, viruses, disruption in transmission, or disruption in telecommunications services.
13. General.
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and each party irrevocably consents to the personal jurisdiction thereof and venue therein. You may not assign or transfer this Agreement, or any rights granted hereunder, by operation of law or otherwise, without Metabase’s prior written consent, and any attempt by you to do so, without such consent, will be void. Metabase may freely assign this Agreement. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the Order or to such other address as may be specified by either party to the other in accordance with this Section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
This Data Processing Addendum (“DPA”) forms part of the attached Subscription Services Agreement (the “Agreement”) between you (“Customer”) and Metabase.
1. Subject Matter and Duration.
1.1 Subject Matter. This DPA reflects the parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data in connection with Metabase’s performance of its obligations under the Agreement. All capitalized terms that are not expressly defined in this DPA will have the meanings given to them in the Agreement. If and to the extent language in this DPA conflicts with the Agreement, this DPA shall control.
1.2 Duration and Survival. This DPA will become legally binding upon the effective date of the Agreement. Metabase will Process Customer Personal Data until the relationship terminates as specified in the Agreement. Metabase’s obligations and Customer’s rights under this DPA will continue in effect so long as Metabase Processes Customer Personal Data.
2. Definitions.
2.1 “Customer Personal Data” means Personal Data within Customer Business Data (and Uploaded Customer Data, if applicable) Processed by Metabase on behalf of Customer.
2.2 “Data Protection Laws” means all applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject. “Data Protection Laws” shall include, but not be limited to, the California Consumer Privacy Act of 2018 (“CCPA”) and the EU General Data Protection Regulation 2016/679 (“GDPR”); in each case, to the extent applicable.
2.3 “Personal Data” shall have the meaning assigned to the terms “personal data” and/or “personal information” under Data Protection Laws.
2.4 “Process” or “</ins>Processing</ins>” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
2.5 “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to Metabase.
2.6 “Services” means any and all services that Metabase performs under the Agreement.
2.7 “Third Party(ies)” means Metabase’s authorized contractors, agents, vendors and third-party service providers (i.e., sub-processors) that Process Customer Personal Data.
3. Data Use and Processing.
3.1 Documented Instructions. Metabase and its Third Parties shall Process Customer Personal Data only in accordance with the documented instructions of Customer or as specifically authorized by this DPA, the Agreement, or any applicable Order. Metabase will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer’s instructions and applicable law or otherwise seeks to Process Customer Personal Data in a manner that is inconsistent with Customer’s instructions.
3.2 Authorization to Use Third Parties. To the extent necessary to fulfill Metabase’s contractual obligations under the Agreement, Customer hereby authorizes (i) Metabase to engage Third Parties and (ii) Third Parties to engage sub-processors.
3.3 Metabase and Third-Party Compliance. Metabase agrees to (i) enter into a written agreement with Third Parties regarding such Third Parties’ Processing of Customer Personal Data that imposes on such Third Parties data protection and security requirements for Customer Personal Data that are compliant with Data Protection Laws; and (ii) remain responsible to Customer for Metabase’s Third Parties’ failure to perform their obligations with respect to the Processing of Customer Personal Data.
3.4 Right to Object to Third Parties. Where required by Data Protection Laws, Metabase will notify Customer prior to engaging any new Third Parties that Process Customer Personal Data by updating its subprocessor list at: metabase.com/hosting/subprocessors and allow Customer ten (10) days to object. If Customer has legitimate objections to the appointment of any new Third Party related to privacy or data protection, the Parties will work together in good faith to resolve the grounds for the objection for no less than thirty (30) days.
3.5 Confidentiality. Any person or Third Party authorized to Process Customer Personal Data must contractually agree to maintain the confidentiality of such information or be under an appropriate statutory obligation of confidentiality.
3.6 Personal Data Inquiries and Requests. Where required by Data Protection Laws, Metabase agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws (e.g., access, rectification, erasure, data portability, etc.). If a request is sent directly to Metabase, Metabase shall notify Customer without undue delay.
3.7 Sale of Customer Personal Data Prohibited. Metabase shall not sell Customer Personal Data as the term “sell” is defined by the CCPA. Metabase shall not disclose or transfer Customer Personal Data to a Third Party or other parties that would constitute “selling” as the term is defined by the CCPA.
3.8 Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, Metabase agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgement, the type of Processing performed by Metabase requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
3.9 Demonstrable Compliance. Metabase agrees provide information that is reasonably necessary to demonstrate compliance with this DPA upon reasonable request.
4. Information Security Program. Metabase agrees to implement commercially reasonable technical and organizational measures designed to protect Customer Personal Data consistent with Data Protection Laws.
5. Security Incidents. Upon becoming aware of a Security Incident, Metabase agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws to Customer by email to the email address associated with your account. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
6. Audits. Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may, not more than once annually, carry out an audit of Metabase’s Processing of Customer Personal Data by having Metabase complete a data protection questionnaire of reasonable length. Any such audit shall be subject to Metabase’s security and confidentiality terms and guidelines.
7. Data Deletion. At the expiry or termination of the Agreement, Metabase will, at Customer’s option, delete or return all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Metabase’s data retention schedule), except where Metabase is required to retain copies under applicable laws, in which case Metabase will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
8. Processing Details.
Subject Matter: The subject matter of the Processing is the Services pursuant to the Agreement.
Duration: The Processing will continue until the expiration or termination of the Agreement.
Categories of Data Subjects: Data subjects whose Personal Data will be Processed pursuant to the Agreement.
Nature and Purpose of the Processing: The purpose of the Processing of Customer Personal Data by Metabase is the performance of the Services.
Types of Customer Personal Data: Customer Personal Data that is Processed pursuant to the Agreement.
This Appendix I forms part of the DPA. Capitalized terms not defined in this Appendix I have the meaning set forth in the DPA or the Agreement.
1. What countries will Customer Personal Data that is transferred outside of the European Economic Area, Switzerland, and/or the United Kingdom be stored in or accessed from? If this varies by region, please specify each country for each region.
a. Answer: Customer Personal Data may be stored in or accessed from the United States.
2. What are the categories of data subjects whose Customer Personal Data will be transferred outside of the European Economic Area, Switzerland, and/or the United Kingdom?
a. Answer: Data Subjects whose Customer Personal Data is processed under the Agreement including, but not limited to, Customer’s employees, contractors, contingent workers, and end users.
3. What are the categories of Customer Personal Data transferred outside of the European Economic Area, Switzerland, and/or the United Kingdom?
a. Answer: The categories of Customer Personal Data that are processed under the Agreement including, but not limited to, name, address, email address, IP addresses, etc.
4. Will any Customer Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences be transferred outside of the European Economic Area, Switzerland, and/or the United Kingdom? If so, are there any restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed pecialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures?
5. What business sector is Metabase involved in?
a. Answer:
6. Broadly speaking, what are the services to be provided and the corresponding purposes for which Customer Personal Data is transferred outside of the European Economic Area, Switzerland, and/or the United Kingdom?
a. Answer: Metabase provides an open-source business intelligence tool. Personal Data is transferred outside of the European Economic Area, Switzerland, and/or the United Kingdom in order to provide the Services.
7. What is the period for which the Customer Personal Data will be retained, or, if that is not possible, the criteria used to determine that period?
a. Answer: Metabase will retain Customer Personal Data in accordance with the Agreement.
8. What is the frequency of the transfer of Customer Personal Data outside of outside of the European Economic Area, Switzerland, and/or the United Kingdom? E.g., is Customer Personal Data transferred on a one-off or continuous basis?
a. Answer: Customer Personal Data is transferred by virtue of Customer uploading Customer Personal Data to the Services.
9. When Customer Personal Data is transferred outside of the European Economic Area, Switzerland, and/or the United Kingdom to Metabase, how is it transmitted to Metabase? Is the Customer Personal Data in plain text, pseudonymized, and/or encrypted?
a. Answer: All Customer Personal Data that is transmitted to Metabase is protected in accordance with the DPA.
10. Please list the Subprocessors that will have access to Customer Personal Data that is transferred outside of the European Economic Area, Switzerland, and/or the United Kingdom:
a. Answer: Metabase’s list of Sub-processors includes all Metabase’s Affiliates and those parties set forth at the following URL: metabase.com/hosting/subprocessors
11. Is Metabase subject to any laws in a country outside of the European Economic Area, Switzerland, and/or the United Kingdom where Customer Personal Data is stored or accessed from that would interfere with Metabase fulfilling its obligations under the EU Standard Contractual Clauses? For example, FISA 702 or U.S. Executive Order 12333. If yes, please list these laws.
a. Answer: As of the effective date of the DPA, no court has found Metabase to be eligible to receive process issued under the laws contemplated by Question 11, including FISA Section 702 and no such court action is pending.
12. Has Metabase ever received a request from public authorities for information pursuant to the laws contemplated by Question 11 above (if any)? If yes, please explain.
a. Answer: No.
13. Has Metabase ever received a request from public authorities for Personal Data of individuals located in European Economic Area, Switzerland, and/or the United Kingdom? If yes, please explain.
a. Answer: No.
14. What safeguards will Metabase apply during transmission and to the processing of Customer Personal Data in countries outside of the European Economic Area, Switzerland, and/or the United Kingdom that have not been found to provide an adequate level of protection under applicable Data Protection Laws?
a. Answer: Those safeguards set forth in the DPA.
This Appendix II forms part of the DPA.
SECTION I
Clause 1
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c)These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
(e) To the extent applicable hereunder, these Clauses also apply mutatis mutandis to the Parties processing of personal data that is subject to the Swiss Federal Act on Data Protection. Where applicable, references to EU Member State law or EU supervisory authorities shall be modified to include the appropriate reference under Swiss law as it relates to transfers of personal data that are subject to the Swiss Federal Act on Data Protection.
(f) To the extent applicable hereunder, these Clauses, as supplemented by Annex III, also apply mutatis mutandis to the Parties processing of personal data that is subject to the United Kingdom General Data Protection Regulation as supplemented by terms in the Data Protection Act 2018.
Clause 2
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 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, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 – Optional
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
MODULE TWO: Transfer controller to processor
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I. B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
MODULE TWO: Transfer controller to processor
(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least ten (10) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
MODULE TWO: Transfer controller to processor
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
MODULE TWO: Transfer controller to processor
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
MODULE TWO: Transfer controller to processor
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub- processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
MODULE TWO: Transfer controller to processor
(a) Where the data exporter is established in an EU Member State, the following section applies: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the following section applies: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the following section applies: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
MODULE TWO: Transfer controller to processor
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
MODULE TWO: Transfer controller to processor
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non- compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
MODULE TWO: Transfer controller to processor
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Clause 18
MODULE TWO: Transfer controller to processor
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX I
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
Data exporter(s):
1. Name: Customer.
Address: As set forth in the applicable Order.
Contact person’s name, position and contact details: As set forth in the applicable Order.
Activities relevant to the data transferred under these Clauses: As set forth in Appendix I of the DPA.
Role (controller/processor): Controller.
Data importer(s):
1. Name: Metabase.
Address: As set forth in the applicable Order.
Contact person’s name, position and contact details: As set forth in the applicable Order.
Activities relevant to the data transferred under these Clauses: As set forth in Appendix I of the DPA.
Role (controller/processor): Processor.
B. DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
Categories of data subjects whose personal data is transferred
As set forth in Appendix I of the DPA.
Categories of personal data transferred
As set forth in Appendix I of the DPA.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
As set forth in Appendix I of the DPA.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
As set forth in Appendix I of the DPA.
Nature of the processing
As set forth in Appendix I of the DPA.
Purpose(s) of the data transfer and further processing
As set forth in Appendix I of the DPA.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
As set forth in Appendix I of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
As set forth in Appendix I of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
The supervisory authority mandated by Clause 13. If no supervisory authority is mandated by Clause 13, then the Irish Data Protection Commission (DPC), and if this is not possible, then as otherwise agreed by the parties consistent with the conditions set forth in Clause 13.
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
MODULE TWO: Transfer controller to processor
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Data importer shall implement and maintain appropriate technical and organisational measures designed to protect personal data in accordance with the DPA.
Pursuant to Clause 10(b), data importer will provide data exporter assistance with data subject requests in accordance with the DPA.
ANNEX III
Standard Data Protection Clauses to be issued by the Commissioner under S119A(1) Data Protection Act 2018
UK Addendum to the EU Commission Standard Contractual Clauses
Date of this Addendum:
1. The Clauses are dated as of the same date as the DPA.
Background:
2. The Information Commissioner considers this Addendum provides appropriate safeguards for the purposes of transfers of personal data to a third country or an international organisation in reliance on Articles 46 of the UK GDPR and, with respect to data transfers from controllers to processors and/or processors to processors. This Addendum forms part of and supplements the Clauses to which it is attached. If Customer Personal Data originating in the United Kingdom is transferred by Customer to Metabase in a country that has not been found to provide an adequate level of protection under UK Data Protection Laws, the Parties agree that the transfer shall be governed by the Clauses as supplemented by this Addendum.
Interpretation of this Addendum
3. Where this Addendum uses terms that are defined in the Annex those terms shall have the same meaning as in the Annex. In addition, the following terms have the following meanings:
| This Addendum | This Addendum to the Clauses |
| The Annex | The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 |
| UK Data Protection Laws | 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 | The United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018. |
| UK | The United Kingdom of Great Britain and Northern Ireland |
4. This Addendum shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfils the intention for it to provide the appropriate safeguards as required by Article 46 UK GDPR.
5. This Addendum shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
6. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.
Hierarchy
7. In the event of a conflict or inconsistency between this Addendum and the provisions of the Clauses or other related agreements between the Parties, existing at the time this Addendum is agreed or entered into thereafter, the provisions which provide the most protection to data subjects shall prevail.
Incorporation of the Clauses
8. This Addendum incorporates the Clauses which are deemed to be amended to the extent necessary so they operate:
(a) for 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 transfer; and
(b) to provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR Laws.
9. The amendments required by Section 8 above, include (without limitation):
(a) References to the “Clauses” means this Addendum as it incorporates the Clauses
(b) 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.”
(c) References to “Regulation (EU) 2016/679” or “that Regulation” are replaced by “UK Data Protection Laws” and references to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws.
(d) References to Regulation (EU) 2018/1725 are removed.
(e) References to the “Union”, “EU” and “EU Member State” are all replaced with the “UK”
(f) Clause 13(a) and Part C of Annex II are not used; the “competent supervisory authority” is the Information Commissioner;
(g) Clause 17 is replaced to state “These Clauses are governed by the laws of England and Wales”.
(h) Clause 18 is replaced to state:
“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.
These Attached Data Warehouse Terms (this “Exhibit C”) will apply if you have purchased a license to access or use the Attached Data Warehouse (defined below) as described in Section 1 of this Exhibit C below. Capitalized terms used but not otherwise defined in this Exhibit C will have the meanings ascribed to them in the Agreement.
1. Attached Data Warehouse; License. You may purchase a license to access data storage via the Subscription Services or otherwise through a checkout flow or other area of Metabase’s online webstore or as noted in the Order (“Attached Data Warehouse”). The Attached Data Warehouse is hosted by Metabase (or its third-party data storage or database management system provider(s)) and is designed to enable you to connect the data uploaded to the Attached Data Warehouse to the Subscription Services. Subject to your payment of the Attached Data Warehouse Fees, Metabase grants you a limited, non-exclusive, non-transferable, non-sublicensable, license, during the Subscription Term, to access the Attached Data Warehouse to upload data into the Attached Data Warehouse solely for use in connection with the Subscription Services, and in such case the Attached Data Warehouse will be deemed a part of the Subscription Services, and all references to the Subscription Services in the Agreement will include reference to the Attached Data Warehouse, as applicable.
2. Uploaded Customer Data For purposes of the Agreement (including this Exhibit C), “Uploaded Customer Data” means any and all data, information, and materials which you upload or transmit to, or otherwise store in, the Attached Data Warehouse. Notwithstanding anything to the contrary in the Agreement, Customer Data will include Uploaded Customer Data. For clarity, Metabase will use Uploaded Customer Data solely in connection with providing the Attached Data Warehouse and Services, and not to develop or improve the Services.
3. License to Uploaded Customer Data. In addition to the licenses granted elsewhere in the Agreement, you hereby grant Metabase (and its third-party data storage or database management system provider(s)) a non-exclusive, worldwide license to access, store, and host the Uploaded Customer Data in the Attached Data Warehouse for purposes of the Agreement and the provision of Subscription Services.
4. Fees. You will pay all fees applicable to your access to and use of the Attached Data Warehouse, as communicated to you via the Subscription Services or otherwise through a checkout flow or other area of Metabase’s online webstore (“Attached Data Warehouse Fees”). Metabase may immediately suspend or terminate your access to the Attached Data Warehouse if you fail to timely pay Attached Data Warehouse Fees when due.
5. No PHI or NPI; Representations and Warranties; Indemnification. You represent and warrant that the (i) you will not transmit, upload, or otherwise provide any Protected Health Information (PHI) (as defined by the Health Insurance Portability and Accountability Act of 1996) or nonpublic personal information (NPI) (as defined by the Gramm-Leach-Bliley Act) to the Attached Data Warehouse; and (ii) you have all necessary rights, permissions, consents, and authority to transmit, upload, and provide Uploaded Customer Data to the Attached Data Warehouse, and such transmission, upload, and provision will not infringe any third-party’s intellectual property rights or violate applicable law. You agree to defend and indemnify Metabase, at your expense, against any legal action brought against Metabase by a third party to the extent that it is based on a claim in connection with your use of the Attached Data Warehouse in a manner that is not in accordance with this Agreement or which violates applicable law.
6. Data Retention. Notwithstanding anything to the contrary in the Agreement, upon termination or expiration of the Agreement, Metabase may retain Uploaded Customer Data for up to one hundred eighty (180) days thereafter pursuant to its backup and archival policies.
