"Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
"DPA" means Data Processing Addendum.
"Control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term "Controlled" shall be construed accordingly.
"Customer Data" means any Personal Data that BackupMaster processes on behalf of Customer as a Data Processor in the course of providing Services, as more particularly described in this DPA.
"Data Protection Laws" means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
"Data Controller" means an entity that determines the purposes and means of the processing of Personal Data.
"Data Processor" means an entity that processes Personal Data on behalf of a Data Controller.
"EU Data Protection Law" means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data ("Directive") and on and after 25 May 2018, 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"); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
"EEA" means, for the purposes of this DPA, the European Economic Area, United Kingdom and Switzerland.
"Group" means any and all Affiliates that are part of an entity's corporate group.
"Personal Data" means any information relating to an identified or identifiable natural person.
"Processing" has the meaning given to it in the GDPR and "process", "processes" and "processed" shall be interpreted accordingly.
"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
"Services" means any product or service provided by BackupMaster to Customer pursuant to the Agreement.
"Sub-processor" means any Data Processor engaged by BackupMaster or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or members of the BackupMaster Group.
2.1 The parties agree that DPA shall replace any existing DPA the parties may have previously entered into in connection with the Services.
2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
2.4 Any claims against BackupMaster or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise. Customer further agrees that any regulatory penalties incurred by BackupMaster in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce BackupMaster’s liability under the Agreement as if it were liability to the Customer under the Agreement.
2.5 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.6 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3.1 This DPA applies where and only to the extent that BackupMaster processes Customer Data that originates from the EEA and/or that is otherwise subject to EU Data Protection Law on behalf of Customer as Data Processor in the course of providing Services pursuant to the Agreement.
3.2 Part A shall apply to the processing of Customer Data within the scope of this DPA from and including 25th May 2018.
3.3 Part B shall apply to the processing of Customer Data within the scope of the DPA from and including 25th May 2018. For the avoidance of doubt, Part B shall apply in addition to, and not in substitution for, the terms in Part A.
4.1 Role of the Parties. As between BackupMaster and Customer, Customer is the Data Controller of Customer Data, and BackupMaster shall process Customer Data only as a Data Processor acting on behalf of Customer.
4.2 Customer Processing of Customer Data. Customer agrees that (i) it shall comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to BackupMaster; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for BackupMaster to process Customer Data and provide the Services pursuant to the Agreement and this DPA.
4.3 BackupMaster Processing of Customer Data. BackupMaster shall process Customer Data only for the purposes described in this DPA and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to BackupMaster in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and BackupMaster.
4.4 Details of Data Processing
4.4.1 Subject matter: The subject matter of the data processing under this DPA is the Customer Data.
4.4.2 Duration: As between BackupMaster and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
4.4.3 Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of BackupMaster's obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
4.4.4 Nature of the processing: BackupMaster provides a backup service, as described in the Agreement.
5.1 Authorized Sub-processors. Customer agrees that BackupMaster may engage Sub-processors to process Customer Data on Customer's behalf. The Sub-processors currently engaged by BackupMaster and authorized by Customer are listed in Annex A.
5.2 Sub-processor Obligations. BackupMaster shall: (i) enter into an agreement with the Subprocessor imposing data protection terms that require the Sub-processor to protect the Customer Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause BackupMaster to breach any of its obligations under this DPA.
6.1 Security Measures. BackupMaster shall implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data.
6.2 Updates to Security Measures. Customer is responsible for reviewing the information made available by BackupMaster relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that BackupMaster may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
6.3 Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
BackupMaster shall provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires that are necessary to confirm BackupMaster's compliance with this DPA, provided that Customer shall not exercise this right more than once per year.
BackupMaster may transfer and process Customer Data anywhere in the world where BackupMaster, its Affiliates or its Sub-processors maintain data processing operations. BackupMaster shall at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.
9.1 Confidentiality of processing. BackupMaster shall ensure that any person who is authorized by BackupMaster to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
9.2 Security Incident Response. Upon becoming aware of a Security Incident, BackupMaster shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
Upon termination or expiration of the Agreement, BackupMaster shall (at Customer's election) delete or return to Customer all Customer Data (including copies) in its possession or control, save that this requirement shall not apply to the extent BackupMaster is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data BackupMaster shall securely isolate and protect from any further processing, except to the extent required by applicable law.
11.1 The Services provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Customer Data, which Customer may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Customer Data within the Services, BackupMaster shall (at Customer's expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to BackupMaster, BackupMaster shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If BackupMaster is required to respond to such a request, BackupMaster shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
11.2 If a law enforcement agency sends BackupMaster a demand for Customer Data (for example, through a subpoena or court order), BackupMaster shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, BackupMaster may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then BackupMaster shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless BackupMaster is legally prohibited from doing so.
11.3 To the extent BackupMaster is required under EU Data Protection Law, BackupMaster shall (at Customer's expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
BackupMaster uses its Affiliates and a range of third party Sub-processors to assist it in providing the Services (as described in the Agreement). These Sub-processors set out below provide cloud hosting and storage services; content delivery and review services; assist in providing customer support; as well as incident tracking, response, diagnosis and resolution services.
This DPA was last modified on: May 18, 2018