Data Processing Agreement

Last Updated: August 20, 2024

Cover Page

This Data Processing Agreement ("DPA") is entered into and is supplemental to, and made pursuant to, the Fathom standard terms available at fathom.video/terms, Service and License Agreement or the relevant agreement with Fathom pursuant to which Fathom provides its Services (the "Agreement") as of the effective date of such Agreement ("Effective Date") and is by and between Fathom Inc., a Delaware corporation ("Fathom"), and the Customer that executed or entered into the Agreement. This DPA applies to Fathom’s processing of Personal Data under the Agreement.

Customer enters into this DPA on behalf of itself and, to the extent required under Applicable Data Protection Laws, in the name and on behalf of its affiliates to the extent such affiliates are included and covered under the Agreement with Fathom. For the purposes of this DPA only, and except where indicated otherwise, the term "Customer" shall include Customer and affiliates.

This DPA shall become legally binding upon Customer entering into the Agreement.

This DPA has 2 parts: (1) the Key Terms on this Cover Page and (2) the Common Paper DPA Standard Terms Version 1 attached below (“DPA Standard Terms”). If there is any inconsistency between the parts of the DPA, the Cover Page will control over the DPA Standard Terms. Capitalized and highlighted words have the meanings given on the Cover Page. However, if the Cover Page omits or does not define a highlighted word, the default meaning will be “none” or “not applicable” and the correlating clause, sentence, or section does not apply to this Agreement. All other capitalized words have the meanings given in the DPA Standard Terms or the Agreement.

Key Terms

The key legal terms of the DPA are as follows:

Agreement	This DPA supplements the following agreement: Fathom standard terms available at https://fathom.video/terms, Service and License Agreement or the relevant agreement with Fathom pursuant to which Fathom provides its Services
Approved Subprocessors	View a list of Fathom subprocessors at https://trust.fathom.video
Provider Security Contact	trust@fathom.video
Security Policy	Security Policy available at: More information on policies and controls is available at https://trust.fathom.video Provider will maintain annually updated reports or annual certifications of compliance with the following: SOC 2 Type II HIPAA Penetration Testing
Changes to the Agreement
Service Provider Relationship	To the extent California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq (“CCPA”) applies, the parties acknowledge and agree that Provider is a service provider and is receiving Personal Data from Customer to provide the Service as agreed in the Agreement and detailed below (see Nature and Purpose of Processing), which constitutes a limited and specified business purpose. Provider will not sell or share any Personal Data provided by Customer under the Agreement. In addition, Provider will not retain, use, or disclose any Personal Data provided by Customer under the Agreement except as necessary for providing the Service for Customer, as stated in the Agreement, or as permitted by Applicable Data Protection Laws. Provider certifies that it understands the restrictions of this paragraph and will comply with all Applicable Data Protection Laws. Provider will notify Customer if it can no longer meet its obligations under the CCPA.
Restricted Transfers
Governing Member State	EEA Transfers: Ireland UK Transfers: England
Annex I(A) List of Parties
Data Exporter	Name: the Customer or you under the Agreement Activities relevant to transfer: See Annex 1(B) Role: Controller
Data Importer	Name: the Provider under the Agreement Contact person: Richard White, CEO Address: 2261 Market Street #4156, San Francisco, California 94114, USA Activities relevant to transfer: See Annex 1(B) Role: Processor
Annex I(B) Description of Transfer and Processing Activities
Service	The Service is: Fathom provides an audiovisual recording service that integrates with Zoom, Microsoft Outlook, and Google Calendar. People use Fathom’s Services to record, transcribe, and get summaries of their video conferencing meetings.
Categories of Data Subjects	Customer and Authorized Users and the attendees of their video conferencing meetings where they choose to utilize Fathom.
Categories of Personal Data	For Authorized Users, Fathom collects meeting recording data (audio, video, transcript), calendar data (meeting titles, times, attendee emails), and personal information (name, email, IP, role, job title). Customer and Authorized Users determine the identity of the persons which are part of the conversations and content analyzed by the Services, and the type and nature of any Personal Data (if any) exchanged in such conversations or included in such content. Fathom has no control over the identity of the Data Subjects whose Personal Data is processed on behalf of Customer and over the types of Personal Data Processed. 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.
Special Category Data Is special category data (as defined in Article 9 of the GDPR) Processed?	Yes
Special Category Data Restrictions or Safeguards	See Security Policy
Frequency of Transfer	Continuous
Nature and Purpose of Processing	Provider processes Customer’s Personal Data as part of providing Customer with the Services, pursuant to the specifications and for the duration under the Agreement. The nature of processing includes, without limitation, generation of meeting recordings, transcription and AI summarization of meeting recordings, secure storage and organization of meeting recordings, export of content (transcript, recordings, summaries) to 3rd party platforms integrated by Customer and Authorized Users (ex CRMs, task management systems).
Duration of Processing	Provider will process Customer Personal Data as long as required (i) to conduct the Processing activities instructed in Section 2.2(a)-(d) of the Standard Terms; or (ii) by Applicable Laws.
Annex I(C)
Competent Supervisory Authority	The supervisory authority will be the supervisory authority of the data exporter, as determined in accordance with Clause 13 of the EEA SCCs or the relevant provision of the UK Addendum.
Annex II
Technical and Organizational Security Measures	See Security Policy Protecting Customer Personal Data during transmission (in transit): All data is encrypted in transit Protecting Customer Personal Data during storage (at rest): All data is encrypted at rest

Standard Terms

Processor and Subprocessor Relationships
1. Provider as Processor. In situations where Customer is a Controller of the Customer Personal Data, Provider will be deemed a Processor that is Processing Personal Data on behalf of Customer.
2. Provider as Subprocessor. In situations where Customer is a Processor of the Customer Personal Data, Provider will be deemed a Subprocessor of the Customer Personal Data.
Processing
1. Processing Details. Annex I(B) on the Cover Page describes the subject matter, nature, purpose, and duration of this Processing, as well as the Categories of Personal Data collected and Categories of Data Subjects.
2. Processing Instructions. Customer instructs Provider to Process Customer Personal Data: (a) to provide and maintain the Service; (b) as may be further specified through Customer’s use of the Service; (c) as documented in the Agreement; and (d) as documented in any other written instructions given by Customer and acknowledged by Provider about Processing Customer Personal Data under this DPA. Provider will abide by these instructions unless prohibited from doing so by Applicable Laws. Provider will immediately inform Customer if it is unable to follow the Processing instructions. Customer has given and will only give instructions that comply with Applicable Laws.
3. Processing by Provider. Provider will only Process Customer Personal Data in accordance with this DPA, including the details in the Cover Page. If Provider updates the Service to update existing or include new products, features, or functionality, Provider may change the Categories of Data Subjects, Categories of Personal Data, Special Category Data, Special Category Data Restrictions or Safeguards, Frequency of Transfer, Nature and Purpose of Processing, and Duration of Processing as needed to reflect the updates by notifying Customer of the updates and changes.
4. Customer Processing. Where Customer is a Processor and Provider is a Subprocessor, Customer will comply with all Applicable Laws that apply to Customer’s Processing of Customer Personal Data. Customer’s agreement with its Controller will similarly require Customer to comply with all Applicable Laws that apply to Customer as a Processor. In addition, Customer will comply with the Subprocessor requirements in Customer’s agreement with its Controller.
5. Consent to Processing. Customer has complied with and will continue to comply with all Applicable Data Protection Laws concerning its provision of Customer Personal Data to Provider and/or the Service, including making all disclosures, obtaining all consents, providing adequate choice, and implementing relevant safeguards required under Applicable Data Protection Laws.
6. Subprocessors.
  1. Provider will not provide, transfer, or hand over any Customer Personal Data to a Subprocessor unless Customer has approved the Subprocessor. The current list of Approved Subprocessors includes the identities of the Subprocessors, their country of location, and their anticipated Processing tasks. Provider will inform Customer at least 10 business days in advance and in writing of any intended changes to the Approved Subprocessors whether by addition or replacement of a Subprocessor, which allows Customer to have enough time to object to the changes before the Provider begins using the new Subprocessor(s). Provider will give Customer the information necessary to allow Customer to exercise its right to object to the change to Approved Subprocessors. Customer has 30 days after notice of a change to the Approved Subprocessors to object, otherwise Customer will be deemed to accept the changes. If Customer objects to the change within 30 days of notice, Customer and Provider will cooperate in good faith to resolve Customer’s objection or concern.
  2. When engaging a Subprocessor, Provider will have a written agreement with the Subprocessor that ensures the Subprocessor only accesses and uses Customer Personal Data (i) to the extent required to perform the obligations subcontracted to it, and (ii) consistent with the terms of Agreement.
  3. If the GDPR applies to the Processing of Customer Personal Data, (i) the data protection obligations described in this DPA (as referred to in Article 28(3) of the GDPR, if applicable) are also imposed on the Subprocessor, and (ii) Provider’s agreement with the Subprocessor will incorporate similar obligations, including details about how Provider and its Subprocessor will coordinate to respond to inquiries or requests about the Processing of Customer Personal Data. In addition, Provider will share, at Customer’s request, a copy of its agreements (including any amendments) with its Subprocessors. To the extent necessary to protect business secrets or other confidential information, including personal data, Provider may redact the text of its agreement with its Subprocessor prior to sharing a copy.
  4. Provider remains fully liable for all obligations subcontracted to its Subprocessors, including the acts and omissions of its Subprocessors in Processing Customer Personal Data. Provider will notify Customer of any failure by its Subprocessors to fulfill a material obligation about Customer Personal Data under the agreement between Provider and the Subprocessor.
Restricted Transfers
1. Authorization. Customer agrees that Provider may transfer Customer Personal Data outside the EEA, the United Kingdom, or other relevant geographic territory as necessary to provide the Service. If Provider transfers Customer Personal Data to a territory for which the European Commission or other relevant supervisory authority has not issued an adequacy decision, Provider will implement appropriate safeguards for the transfer of Customer Personal Data to that territory consistent with Applicable Data Protection Laws.
2. Ex-EEA Transfers. Except as set forth in Section 3.5 below, Customer and Provider agree that if the GDPR protects the transfer of Customer Personal Data, the transfer is from Customer from within the EEA to Provider outside of the EEA, and the transfer is not governed by an adequacy decision made by the European Commission, then by entering into this DPA, Customer and Provider are deemed to have signed the EEA SCCs and their Annexes, which are incorporated by reference. Any such transfer is made pursuant to the EEA SCCs, which are completed as follows:
  1. Module Two (Controller to Processor) of the EEA SCCs apply when Customer is a Controller and Provider is Processing Customer Personal Data for Customer as a Processor.
  2. Module Three (Processor to Sub-Processor) of the EEA SCCs apply when Customer is a Processor and Provider is Processing Customer Personal Data on behalf of Customer as a Subprocessor.
  3. For each module, the following applies (when applicable):
    1. The optional docking clause in Clause 7 does not apply;
    2. In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of Subprocessor changes is 10 business days;
    3. In Clause 11, the optional language does not apply;
    4. All square brackets in Clause 13 are removed;
    5. In Clause 17 (Option 1), the EEA SCCs will be governed by the laws of Governing Member State;
    6. In Clause 18(b), disputes will be resolved in the courts of the Governing Member State; and
    7. The Cover Page to this DPA contains the information required in Annex I, Annex II, and Annex III of the EEA SCCs.
3. Ex-UK Transfers. Except as set forth in Section 3.5 below, Customer and Provider agree that if the UK GDPR protects the transfer of Customer Personal Data, the transfer is from Customer from within the United Kingdom to Provider outside of the United Kingdom, and the transfer is not governed by an adequacy decision made by the United Kingdom Secretary of State, then by entering into this DPA, Customer and Provider are deemed to have signed the UK Addendum and their Annexes, which are incorporated by reference. Any such transfer is made pursuant to the UK Addendum, which is completed as follows:
  1. Section 3.2 of this DPA contains the information required in Table 2 of the UK Addendum.
  2. Table 4 of the UK Addendum is modified as follows: Neither party may end the UK Addendum as set out in Section 19 of the UK Addendum; to the extent ICO issues a revised Approved Addendum under Section 18 of the UK Addendum, the parties will work in good faith to revise this DPA accordingly.
  3. The Cover Page contains the information required by Annex 1A, Annex 1B, Annex II, and Annex III of the UK Addendum.
4. Other International Transfers. For Personal Data transfers where Swiss law (and not the law in any EEA member state or the United Kingdom) applies to the international nature of the transfer, references to the GDPR in Clause 4 of the EEA SCCs are, to the extent legally required, amended to refer to the Swiss Federal Data Protection Act or its successor instead, and the concept of supervisory authority will include the Swiss Federal Data Protection and Information Commissioner.
5. Data Privacy Framework. Customer and Provider agree that as of the date of this DPA, Provider is certified under the Data Privacy Framework. As such, so long as the Data Privacy Framework remains in effect, the transfers under Sections 3.2, 3.3 and 3.4 shall be governed by the Data Privacy Framework and not the EEA SCC’s or the UK Addendum. If at any time the Data Privacy Framework ceases to be in effect is revoked and/or held in a court of competent jurisdiction to be invalid, the parties agree that the transfers under Sections 3.2, 3.3 and 3.4 shall then automatically be governed under the EEA SCC’s and/or the UK Addendum, as applicable.
Security Incident Response
Upon becoming aware of any Security Incident, Provider will: (a) notify Customer without undue delay when feasible, but no later than 72 hours after becoming aware of the Security Incident; (b) provide timely information about the Security Incident as it becomes known or as is reasonably requested by Customer; and (c) promptly take reasonable steps to contain and investigate the Security Incident. Provider’s notification of or response to a Security Incident as required by this DPA will not be construed as an acknowledgment by Provider of any fault or liability for the Security Incident.
Audit & Reports
1. Audit Rights. Provider will give Customer all information reasonably necessary to demonstrate its compliance with this DPA and Provider will allow for and contribute to audits, including inspections by Customer, to assess Provider’s compliance with this DPA. However, Provider may restrict access to data or information if Customer’s access to the information would negatively impact Provider’s intellectual property rights, confidentiality obligations, or other obligations under Applicable Laws. Customer acknowledges and agrees that it will only exercise its audit rights under this DPA and any audit rights granted by Applicable Data Protection Laws by instructing Provider to comply with the reporting and due diligence requirements below. Provider will maintain records of its compliance with this DPA for 3 years after the DPA ends.
2. Security Reports. Customer acknowledges that Provider is regularly audited against the standards defined in the Security Policy by independent third-party auditors. Upon written request, Provider will give Customer, on a confidential basis, a summary copy of its then-current Report so that Customer can verify Provider’s compliance with the standards defined in the Security Policy.
3. Security Due Diligence. In addition to the Report, Provider will respond to reasonable requests for information made by Customer to confirm Provider’s compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, or by giving additional information about its information security program. All such requests must be in writing and made to the Provider Security Contact and may only be made once a year.
Coordination & Cooperation
1. Response to Inquiries. If Provider receives any inquiry or request from anyone else about the Processing of Customer Personal Data, Provider will notify Customer about the request and Provider will not respond to the request without Customer’s prior consent. Examples of these kinds of inquiries and requests include a judicial or administrative or regulatory agency order about Customer Personal Data where notifying Customer is not prohibited by Applicable Law, or a request from a data subject. If allowed by Applicable Law, Provider will follow Customer’s reasonable instructions about these requests, including providing status updates and other information reasonably requested by Customer. If a data subject makes a valid request under Applicable Data Protection Laws to delete or opt out of Customer’s giving of Customer Personal Data to Provider, Provider will assist Customer in fulfilling the request according to the Applicable Data Protection Law. Provider will cooperate with and provide reasonable assistance to Customer, at Customer’s expense, in any legal response or other procedural action taken by Customer in response to a third-party request about Provider’s Processing of Customer Personal Data under this DPA.
2. DPIAs and DTIAs. If required by Applicable Data Protection Laws, Provider will reasonably assist Customer in conducting any mandated data protection impact assessments or data transfer impact assessments and consultations with relevant data protection authorities, taking into consideration the nature of the Processing and Customer Personal Data.
Deletion of Customer Personal Data
1. Deletion by Customer. Provider will enable Customer to delete Customer Personal Data in a manner consistent with the functionality of the Services. Provider will comply with this instruction as soon as reasonably practicable except where further storage of Customer Personal Data is required by Applicable Law.
2. Deletion at DPA Expiration.
  1. After the DPA expires, Provider will return or delete Customer Personal Data at Customer’s instruction unless further storage of Customer Personal Data is required or authorized by Applicable Law. If return or destruction is impracticable or prohibited by Applicable Laws, Provider will make reasonable efforts to prevent additional Processing of Customer Personal Data and will continue to protect the Customer Personal Data remaining in its possession, custody, or control. For example, Applicable Laws may require Provider to continue hosting or Processing Customer Personal Data.
  2. If Customer and Provider have entered the EEA SCCs or the UK Addendum as part of this DPA, Provider will only give Customer the certification of deletion of Personal Data described in Clause 8.1(d) and Clause 8.5 of the EEA SCCs if Customer asks for one.
Limitation of Liability
1. Liability Caps and Damages Waiver. To the maximum extent permitted under Applicable Data Protection Laws, each party’s total cumulative liability to the other party arising out of or related to this DPA will be subject to the waivers, exclusions, and limitations of liability stated in the Agreement.
2. Related-Party Claims. Any claims made against Provider or its affiliates arising out of or related to this DPA may only be brought by the Customer entity that is a party to the Agreement.
3. Exceptions. This DPA does not limit any liability to an individual about the individual’s data protection rights under Applicable Data Protection Laws. In addition, this DPA does not limit any liability between the parties for violations of the EEA SCCs or UK Addendum.
Conflicts Between Documents
This DPA forms part of and supplements the Agreement. If there is any inconsistency between this DPA, the Agreement, or any of their parts, the part listed earlier will control over the part listed later for that inconsistency: (1) the Data Privacy Framework Requirements, (2) the EEA SCCs or the UK Addendum, (3) this DPA, and then (4) the Agreement.
Term of Agreement
By executing or entering into the Agreement, Provider and Customer are deemed to have signed this DPA which will start on the Effective Date and will continue until the Agreement expires or is terminated. However, Provider and Customer will each remain subject to the obligations in this DPA and Applicable Data Protection Laws until Customer stops transferring Customer Personal Data to Provider and Provider stops Processing Customer Personal Data
Definitions
1. “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern a party.
2. “Applicable Data Protection Laws” means the Applicable Laws that govern how the Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.
3. “Controller” will have the meaning(s) given in the Applicable Data Protection Laws for the company that determines the purpose and extent of Processing Personal Data.
4. “Cover Page” means the pages of this Agreement with Key Terms that incorporates these DPA Standard Terms and identifies Provider, Customer, and the subject matter and details of the data processing.
5. “Customer Personal Data” means Personal Data that Customer uploads or provides to Provider as part of the Service and that is governed by this DPA.
6. “DPA” means these DPA Standard Terms, the Cover Page between Provider and Customer, and the policies and documents referenced in or attached to the Cover Page.
7. “EEA SCCs” means the standard contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the European Council.
8. “European Economic Area” or “EEA” means the member states of the European Union, Norway, Iceland, and Liechtenstein.
9. “GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant EEA member nation.
10. “Personal Data” will have the meaning(s) given in the Applicable Data Protection Laws for personal information, personal data, or other similar term.
11. “Processing” or “Process” will have the meaning(s) given in the Applicable Data Protection Laws for any use of, or performance of a computer operation on, Personal Data, including by automatic methods.
12. “Processor” will have the meaning(s) given in the Applicable Data Protection Laws for the company that Processes Personal Data on behalf of the Controller.
13. “Report” means audit reports prepared by another company according to the standards defined in the Security Policy on behalf of Provider.
14. “Restricted Transfer” means (a) where the GDPR applies, a transfer of personal data from the EEA to a country outside of the EEA which is not subject to an adequacy determination by the European Commission; and (b) where the UK GDPR applies, a transfer of personal data from the United Kingdom to any other country which is not subject to adequacy regulations adopted pursuant to Section 17A of the United Kingdom Data Protection Act 2018.
15. “Security Incident” means a Personal Data Breach as defined in Article 4 of the GDPR.
16. “Service” means the product and/or services described in the Agreement.
17. "Special Category Data” will have the meaning given in Article 9 of the GDPR.
18. “Subprocessor” will have the meaning(s) given in the Applicable Data Protection Laws for a company that, with the approval and acceptance of Controller, assists the Processor in Processing Personal Data on behalf of the Controller.
19. “UK GDPR” means European Union Regulation 2016/679 as implemented by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.
20. “UK Addendum” means the international data transfer addendum to the EEA SCCs issued by the Information Commissioner for Parties making Restricted Transfers under S119A(1) Data Protection Act 2018.