MTCaptcha - Data Processing Agreement

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Last Modified: March 28, 2024

To

<Customer Enterprise Name>

<Address>

From

Sun Spray Technologies LLC, doing business as MTCaptcha

2254 Mora Pl #201 Mountain View CA 94040

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This MTCaptcha Data Processing Agreement and its Appendices (“DPA”) reflects the parties’ agreement with respect to the Processing of Personal Data by us on behalf of you in connection with the MTCaptcha Subscription Services under the MTCaptcha Customer Terms of Service between you and us (also referred to in this DPA as the “Agreement”).

This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement, an Order Form or an executed amendment to the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.

We update these terms from time to time. If you have an active MTCaptcha subscription, we will let you know when we do via email (if you have subscribed to receive email notifications via the link in our Terms and Conditions). 

The term of this DPA will follow the term of the Agreement. Terms not otherwise defined in this DPA will have the meaning as set forth in the Agreement.  

1. Definitions

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“California Personal Information” means Personal Data that is subject to the protection of the CCPA.  

"CCPA" means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 or “CPRA”).

"Consumer", "Business", "Sell", "Service Provider", and “Share” will have the meanings given to them in the CCPA.

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

“Customer”, "You" or "your" the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer and your Affiliates included in the scope of your purchase.

"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include MTCaptcha Content.

“Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation European Data Protection Laws, the CCPA and other applicable U.S. federal and state privacy laws, and the data protection and privacy laws of Australia, Singapore, and Japan, in each case as amended, repealed, consolidated or replaced from time to time; with regard to MTCaptcha, Data Protection Laws exclude laws governing Sensitive Information, as defined in the Terms and Conditions.

“Data Subject” means the individual to whom Personal Data relates.

“Enterprise Plan” means the MTCaptcha Enterprise Subscription plan.

"Europe" means the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.

“European Data” means Personal Data that is subject to the protection of European Data Protection Laws.

"European Data Protection Laws" means data protection laws applicable in Europe, including: 

1. Regulation 2016/679 of the European Parliament and of the Council 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) ("GDPR"); 
2. Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector;                         and
3. applicable national implementations of (i) and (ii); or (iii) GDPR as it forms parts of the United Kingdom domestic law by virtue of Section                         3 of the European Union (Withdrawal) Act 2018 ("UK GDPR"); and 
4. Swiss Federal Data Protection Act and its Ordinance ("Swiss DPA"); in each case, as may be amended, superseded or replaced.

“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data.

"Customer's Affiliates" means any of your Affiliates that 

               (i) are permitted to use the MTCaptcha Subscription Services pursuant to the Agreement, but have not signed their own separate agreement                     with us and are not a “Customer” as defined under the Agreement, 

              (ii) qualify as a Controller of Personal Data Processed by us, and 

              (iii) are subject to European Data Protection Laws.

“Personal Data” means any information relating to an identified or identifiable individual where 

              (i) such information is contained within Customer Data; and 

              (ii) is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.

“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Subscription Services.

"Personal Data Breach" will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.

“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.

“Standard Contractual Clauses” means the standard contractual clauses and Appendices to the European Commission’s Decision (EU) 2021/914 of 4 June 2021 currently found at https://eur-lex.europa.eu/eli/dec_impl/2021/914/, as may be amended, superseded or replaced.

“Sub-Processor” means any Processor engaged by us or MTCaptcha Partners to assist in fulfilling our obligations with respect to the provision of the Subscription Services under the Agreement. Sub-Processors may include third parties or MTCaptcha Partners but will exclude any MTCaptcha employee or consultant.

"Subscription Service" means all of our software applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via https://service.mtcaptcha.com/, https://service2.mtcaptcha.com/ and https://admin.mtcaptcha.com/   or another designated URL, and any ancillary products and services, including website hosting, that we provide to you. 

"MTCaptcha", "we", "us" or “our” means Sun Spray Technologies LLC also doing business as MTCaptcha, a registered LLC company in California, USA.

"MTCaptcha Partner" means any entity which directly or indirectly controls, is controlled by, or is under common control with MTCaptcha. 

“UK Addendum” means the International Data Transfer Addendum issued by the UK Information Commissioner under section 119A(1) of the Data Protection Act 2018 currently found at https://ico.org.uk/media/for- organisations/documents/4019539/international-data-transfer-addendum.pdf, as may be amended, superseded, or replaced.

2. Customer Responsibilities

1. Compliance with Laws Within the scope of the Agreement and in its use of the services, you will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to us.                                                       
2. In particular but without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for:

1. (i)  the accuracy, quality, and legality of Customer Data and the means by which you acquired Personal Data; 
2. complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations; 
3. (iii) ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement and this DPA; and
4. (iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws.

    You will inform us within thirty (30) days if you are not able to comply with your responsibilities under this Compliance with Laws section or     applicable Data Protection Laws.

    b.   Security You are responsible for independently determining whether the data security provided for in the Subscription Service adequately meets            your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Subscription Service, including            protecting the security of Personal Data in transit to and from the Subscription Service, including to securely backup or encrypt any such            Personal Data.

3. MTCaptcha Obligations

1. Compliance with Instructions We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to you or your industry that are not generally applicable to us.
2. Conflict of Laws If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Agreement for any failure to perform the applicable Subscription Services until such time as you issue new lawful Instructions with regard to the Processing.
3. Security We will implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches, as described under Appendix 2 to this DPA ("Security Measures"). Notwithstanding any provision to the contrary, we may modify or update the Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.
4. Confidentiality We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.
5. Personal Data Breaches We will notify you without undue delay after we become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.
6. Deletion or Return of Personal Data We will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Subscription Service in accordance with the procedures set out in our Terms and Conditions. This term will apply except where we are required by applicable law to retain some or all of the Customer Data, or where we have archived Customer Data on back-up systems, which data we will securely isolate and protect from any further Processing and delete in accordance with our deletion practices. You may request the deletion of your MTCaptcha account after expiration or termination of your subscription by sending a request using our support email support@mtcaptcha.com.

4. Data Subject Requests

The Subscription Service provides you with a number of controls that you can use to retrieve, correct, which you can use to assist it in connection with its obligations under Data Protection Laws, including your obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws ("Data Subject Requests").

To the extent that you are unable to independently address a Data Subject Request through the Subscription Service, then upon your written request we will provide reasonable assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement. You will reimburse us for the commercially reasonable costs arising from this assistance.

If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly inform you and will advise the Data Subject to submit their request to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.

5. Sub-Processors

You agree we may engage Sub-Processors to Process Personal Data on your behalf, and we do so in three ways. First, we may engage Sub-Processors to assist us with hosting and infrastructure. Second, we may engage with Sub-Processors to support product features and integrations. Some Sub-Processors will apply to you as default, and some Sub-Processors will apply only if you opt-in.

We have currently appointed, as Sub-Processors, the third parties and MTCaptcha Partners listed in Appendix 3 to this DPA. You may subscribe to receive notifications by email if we add or replace any Sub-Processors by sending an email subscription request to support@mtcaptcha.com. 

Where we engage Sub-Processors, we will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA, to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause us to breach any of its obligations under this DPA.

6. Data Transfers

You acknowledge and agree that we may access and Process Personal Data on a global basis as necessary to provide the Subscription Service in accordance with the Agreement, and in particular that Personal Data may be transferred to and Processed by MTCaptcha in the United States and to other jurisdictions where MTCaptcha Partners and Sub-Processors have operations. Wherever Personal Data is transferred outside its country of origin, each party will ensure such transfers are made in compliance with the requirements of Data Protection Laws.

7. Demonstration of Compliance

If you have subscribed to MTCaptcha Enterprise Plan, we will make all information reasonably necessary to demonstrate compliance with this DPA available to you upon request. You acknowledge that the Subscription Service is hosted by our hosting Sub-Processors who maintain independently validated security programs (including SOC 2 and ISO 27001) and that our systems are audited annually as part of internal compliance and regularly tested by penetration testing services. Upon request, we will supply (on a confidential basis) our internal audit report and summary copies of our penetration testing report(s) to you so that you can verify our compliance with this DPA. Further, if you have subscribed to MTCaptcha Enterprise Plan, at your written request, we will provide written responses (on a confidential basis) to all reasonable requests for information made by you necessary to confirm our compliance with this DPA, provided that you will not exercise this right more than once per calendar year unless you have reasonable grounds to suspect non-compliance with the DPA.

8. Additional Provisions for European Data

1. Scope This 'Additional Provisions for European Data' section will apply only with respect to European Data.
2. Roles of the Parties When Processing European Data in accordance with your Instructions, the parties acknowledge and agree that you are acting as the Controller of European Data (either as the Controller, or as a Processor on behalf of another Controller) and we are the Processor under the Agreement.
3. Instructions If we believe that your Instruction infringes European Data Protection Laws (where applicable), we will inform you without delay.
4. Data Protection Impact Assessments and Consultation with Supervisory Authorities To the extent that the required information is reasonably available to us, and you do not otherwise have access to the required information, we will provide reasonable assistance to you with any data protection impact assessments, and prior consultations with supervisory authorities (for example, the French Data Protection Agency (CNIL), the Berlin Data Protection Authority (BlnBDI) and the UK Information Commissioner's Office (ICO)) or other competent data privacy authorities to the extent required by European Data Protection Laws.
5. Transfer Mechanisms for Data Transfers.
   1. MTCaptcha will not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of applicable European Data Protection Laws), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) (i) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data;(ii)to a recipient that has achieved bindig corporate rules authorization in accordance with European Data Protection Laws; or (iii) to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws; or (iii) to a recipient that has executed the Standard Contractual Clauses; in each case as adopted or approved in accordance with applicable European Data Protection Laws.
   2. You acknowledge that in connection with the performance of the Subscription Services, MTCaptcha does not transfer European Data to the United States or any other country.
      1. Standard Contractual Clauses. If European Data Protection Laws require that appropriate safeguards are put in place, the Standard Contractual Clauses will be incorporated by reference and form part of the Agreement as follows:
         1. In relation to European Data that is subject to the GDPR (i) Customer is the "data exporter" and MTCaptcha is the "data importer"; (ii) the Module Two terms apply to the extent the Customer is a Controller of European Data and the Module Three terms apply to the extent the Customer is a Processor of European Data; (iii) in Clause 7, the optional docking clause applies; (iv) in Clause 9, Option 2 applies and changes to Sub-Processors will be notified in accordance with the ‘Sub-Processors’ section of this DPA; (v) in Clause 11, the optional language is deleted; (vi) in Clauses 17 and 18, the parties agree that the governing law and forum for disputes for the Standard Contractual Clauses will be determined in accordance with the 'Contracting Entity; Applicable Law; Notice’ section of the Jurisdiction Specific Terms or, if such section does not specify an EU Member State, the Republic of Ireland (without reference to conflicts of law principles); (vii) the Appendixes of the Standard Contractual Clauses will be deemed completed with the information set out in the Appendixes of this DPA; (viii) the supervisory authority that will act as competent supervisory authority will be determined in accordance with GDPR; and (ix) if and to the extent the Standard Contractual Clauses conflict with any provision of this DPA the Standard Contractual Clauses will prevail to the extent of such conflict.
         2. In relation to European Data that is subject to the UK GDPR, the Standard Contractual Clauses will apply in accordance with subsection(a) and the following modifications (i) the Standard Contractual Clauses will be modified and interpreted in accordance with the UK Addendum, which will be incorporated by reference and form an integral part of the Agreement; (ii) Tables 1, 2 and 3 of the UK Addendum will be deemed completed with the information set out in the Appendixes of this DPA and Table 4 will be deemed completed by selecting “neither party”; and (iii) any conflict between the terms of the Standard Contractual Clauses and the UK Addendum will be resolved in accordance with Section 10 and Section 11 of the UK Addendum.
         3. In relation to European Data that is subject to the Swiss DPA, the Standard Contractual Clauses will apply in accordance with subsection(a) and the following modifications (i) references to "Regulation (EU) 2016/679" will be interpreted as references to the Swiss DPA; (ii) references to "EU", "Union" and "Member State law" will be interpreted as references to Swiss law; and (iii) references to the "competent supervisory authority" and "competent courts" will be replaced with the "the Swiss Federal Data Protection and Information Commissioner " and the "relevant courts in Switzerland".
         4. You agree that by complying with our obligations under the 'Sub-Processors' section of this DPA, MTCaptcha fulfills its obligations under Section 9 of the Standard Contractual Clauses. For the purposes of Clause 9(c) of the Standard Contractual Clauses, you acknowledge that we may be restricted from disclosing Sub-Processor agreements but we will use reasonable efforts to require any Sub-Processor we appoint to permit it to disclose the Sub-Processor agreement to you and will provide (on a confidential basis) all information we reasonably can. You also acknowledge and agree that you will exercise your audit rights under Clause 8.9 of the Standard Contractual Clauses by instructing us to comply with the measures described in the 'Demonstration of Compliance' section of this DPA.
         5. Where the MTCaptcha contracting entity under the Agreement is not MTCaptcha, such contracting entity (not MTCaptcha) will remain fully and solely responsible and liable to you for the performance of the Standard Contractual Clauses by MTCaptcha, and you will direct any instructions, claims or enquiries in relation to the Standard Contractual Clauses to such contracting entity. If MTCaptcha cannot comply with its obligations under the Standard Contractual Clauses or is breach of any warranties under the Standard Contractual Clauses or UK Addendum (as applicable) for any reason, and you intend to suspend the transfer of European Data to MTCaptcha or terminate the Standard Contractual Clauses, or UK Addendum, you agree to provide us with reasonable notice to enable us to cure such non-compliance and reasonably cooperate with us to identify what additional safeguards, if any, may be implemented to remedy such non-compliance. If we have not or cannot cure the non- compliance, you may suspend or terminate the affected part of the Subscription Service in accordance with the Agreement without liability to either party (but without prejudice to any fees you have incurred prior to such suspension or termination).
   3. Alternative Transfer Mechanism In the event that MTCaptcha is required to adopt an alternative transfer mechanism for European Data, in addition to or other than the mechanisms described in sub-section (B) above, such alternative transfer mechanism will apply automatically instead of the mechanisms described in this DPA (but only to the extent such alternative transfer mechanism complies with European Data Protection Laws), and you agree to execute such other documents or take such action as may be reasonably necessary to give legal effect such alternative transfer mechanism.

9. Additional Provisions for California Personal Information

1. Scope The 'Additional Provisions for California Personal Information' section of the DPA will apply only with respect to California Personal Information.
2. Roles of the Parties When processing California Personal Information in accordance with your Instructions, the parties acknowledge and agree that you are a Business and we are a Service Provider for the purposes of the CCPA.
3. Responsibilities We certify that we will Process California Personal Information as a Service Provider strictly for the purpose of performing the Subscription Services and Consulting Services under the Agreement (the "Business Purpose") or as otherwise permitted by the CCPA, including as described in the 'Usage Data' section of our Privacy Policy.Further, we certify we i) will not Sell or Share California Personal Information; (ii) will not Process California Personal Information outside the direct business relationship between the parties, unless required by applicable law; and (iii) will not combine the California Personal Information included in Customer Data with personal information that we collect or receive from another source (other than information we receive from another source in connection with our obligations as a Service Provider under the Agreement).
4. Compliance We will (i) comply with obligations applicable to us as a Service Provider under the CCPA and (ii) provide California Personal Information with the same level of privacy protection as is required by the CCPA. We will notify you if we make a determination that we can no longer meet our obligations as a Service Provider under the CCPA.
5. CCPA Audits You will have the right to take reasonable and appropriate steps to help ensure that we use California Personal Information in a manner consistent with Customer’s obligations under the CCPA. Upon notice, you will have the right to take reasonable and appropriate steps in accordance with the Agreement to stop and remediate unauthorized use of California Personal Information.
6. Not a Sale The parties acknowledge and agree that the disclosure of California Personal Information by the Customer to MTCaptcha does not form part of any monetary or other valuable consideration exchanged between the parties.

10. General Provisions

1. Amendments Notwithstanding anything else to the contrary in the Agreement and without prejudice to the ‘Compliance with Instructions’ or ‘Security’ sections of this DPA, we reserve the right to make any updates and changes to this DPA and the terms that apply in the ‘Amendment; No Waiver’ section of the Terms and Conditions will apply.
2. Severability If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.
3. Limitation of Liability Each party and each of their Affiliates' liability, taken in aggregate, arising out of or related to this DPA (including any other DPAs between the parties) and the Standard Contractual Clauses, where applicable, whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the 'Limitation of Liability' section of the Terms and Conditions and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA). For the avoidance of doubt, if MTCaptcha is not a party to the Agreement, the ‘Limitation of Liability’ section of the Terms and Conditions will apply as between you and MTCaptcha, and in such respect any references to ‘MTCaptcha’, ‘we’, ‘us’ or ‘our’ will include MTCaptcha that is a party to the Agreement. In no event will either party's liability be limited with respect to any individual's data protection rights under this DPA (including any other data processing agreements between the parties and the Standard Contractual Clauses, where applicable) or otherwise.
4. Governing Law This DPA will be governed by and construed in accordance with the ‘Contracting Entity; ‘Applicable Law; Notice’ sections of the Jurisdiction Specific Terms, unless required otherwise by Data Protection Laws.

11. Parties to this DPA

1. Customer's Affiliates By signing the Agreement, you enter into this DPA (including, where applicable, the Standard Contractual Clauses) on behalf of yourself and in the name and on behalf of your Customer's Affiliates. For the purposes of this DPA only, and except where indicated otherwise, the terms “Customer”, “you” and “your” will include you and such Customer's Affiliates.
2. Authorization The legal entity agreeing to this DPA as Customer represents that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Customer's Affiliates.
3. Remedies The parties agree that (i) solely the Customer entity that is the contracting party to the Agreement will exercise any right or seek any remedy any Customer’s Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Customer entity that is the contracting party to the Agreement will exercise any such rights under this DPA not separately for each Customer’s Affiliate individually but in a combined manner for itself and all of its Customer's Affiliates together. The Customer entity that is the contracting entity is responsible for coordinating all Instructions, authorizations and communications with us under the DPA and will be entitled to make and receive any communications related to this DPA on behalf of its Customer's Affiliates.
4. Other rights The parties agree that you will, when reviewing our compliance with this DPA pursuant to the ‘Demonstration of Compliance’ section, take all reasonable measures to limit any impact on us and MTCaptcha Partners by combining several audit requests carried out on behalf of the Customer entity that is the contracting party to the Agreement and all of its Customer's Affiliates in one single audit.

Appendix 1 - Details of Processing

A. List of Parties

Data Exporter

Dilip Rajkumar 
COO & Data Protection Officer
dilip.rajkumar@morethancaptcha.com