This Data Processing Addendum ("DPA") forms part of the agreement (“Agreement”) between Netcore or its entities under which it provides Customer or Licensee (as defined in the Agreement and hereinafter “Customer”) and, if applicable, its Affiliates certain products or services ("Services") and in which this DPA is referenced.
“Data Protection Laws” means all applicable privacy and data protection laws, rules, regulations, decrees, orders and other government requirements.
The terms “personal data”, “personal data breach”, “processing”, “processor,” and “data subject”, will have the same meanings ascribed to them in the Data Protection Laws, and where the Data
Protection Laws use equivalent or corresponding terms, such as “personal information” instead of “personal data,” they will be read herein as the same.
This DPA applies to the processing of personal data by NetCore on behalf of Customer and, if applicable, Customer Affiliates under the Agreement.
Scope of Processing
Processing by NetCore will be governed by this DPA, in particular, NetCore will process the personal data only on documented instructions from the Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by the applicable law to which NetCore is subject; in such a case, NetCore will inform Customer of that legal requirement before processing, unless that law prohibits NetCore from doing so on important grounds of public interest.
The subject matter of the processing is the personal data provided in respect of the Services under this Agreement. The duration of the processing is the duration of the provision of the Services under the Agreement until disposal of the personal data in accordance with the Agreement. The nature and purpose of the processing is in connection with the provision of the Services under the Agreement. The types of personal data processed are those submitted to NetCore by or at the direction of the Customer as part of the Services. The categories of data subjects are those whose personal data is submitted to NetCore by or at the direction of Customer as part of the Services.
The Agreement, including this DPA, along with Customer use and configuration of the Services, are the complete and final documented instructions to NetCore for the processing of the personal data. Additional or alternate instructions must be agreed upon separately by the parties. NetCore will ensure that its personnel engaged in the processing of the personal data will process such data only on documented instructions provided by Customer, unless required to do so by applicable law.
NetCore will ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Security of Processing
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Customer and NetCore will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, as described in the Agreement and including inter alia as appropriate:
(a) the pseudonymization and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
(d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
In assessing the appropriate level of security, account will be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
Customer and NetCore will take steps to ensure that any natural person acting under the authority of Customer or NetCore who has access to personal data does not process data except on instructions from Customer unless he or she is required to do so by applicable law.
Notwithstanding any provision to the contrary, NetCore may modify or update its security measures at its discretion provided that such modification or update does not result in a material degradation in the protection offered by the Agreement.
Customer hereby provides NetCore with general authorisation to engage other processors for the processing of personal data in accordance with this DPA. NetCore will maintain a list of such processors at https://netcorecIoud.com/dpa/sub-processors , which NetCore may update from time to time. At least 14 days before authorising any new such processor to process the personal data, NetCore will update such list on its website. Customer may object to the change without penalty, subject to the Agreement’s dispute resolution process or any applicable refund or termination rights Customer may have under the Agreement.
Where NetCore engages another processor for carrying out specific processing activities on behalf of Customer, the same data protection obligations as set out in this DPA will be imposed on that other
processor by way of a contract or under the Data Protection Laws. Where that other processor fails to fulfil those data protection obligations, NetCore will (subject to the terms of the Agreement) remain fully liable to Customer for the performance of that other processor’s obligations.
Data Subject Rights
Taking into account the nature of the processing, NetCore will assist Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the data subject's rights.
NetCore will, to the extent legally permitted, promptly notify Customer of any data subject requests received by NetCore and reasonably cooperate with Customer to fulfil its obligations under the Data Protection Laws in relation to such requests. Customer will be responsible for any reasonable costs arising from NetCore providing assistance to Customer to fulfil such obligations.
NetCore will assist Customer in ensuring compliance with data security, personal breach notification and other obligations as required under the Data Protection Laws, taking into account the nature of processing and the information available to NetCore.
Termination of Service
Upon the expiration or termination of Customer’s use of the Services, unless applicable law requires storage of the personal data, Customer instructs NetCore to delete or return the personal data in accordance with the terms and timelines, if any, for the Services set forth in the Agreement. Where the Agreement provides Customer the choice to delete or return the personal data and Customer does not make that choice within 30 days following the termination of the Agreement, Customer hereby instructs NetCore to delete the personal data, unless applicable law requires storage of the personal data. In such cases, NetCore will delete the personal data as soon as practicable.
The rights for conducting audits are set forth in the Agreement. In the absence of such requirements in the Agreement, where the Data Protection Laws so require, audits will be: (i) subject to the execution of appropriate confidentiality or non-disclosure agreements; (ii) conducted no more than once per year, unless a demonstrated reasonable belief of non-compliance with the Agreement has been made, upon 30 days written notice and having provided a plan for such review; and (iii) be conducted at a mutually agreed upon time, place, and manner.
Cross Border Transfer
NetCore will ensure that, to the extent that any personal data originating from Customer’s country is transferred by NetCore to another country such transfer will be subject to appropriate safeguards that provide an adequate level of protection in accordance with the Data Protection Laws
Personal Data Breach
NetCore will notify Customer without undue delay after becoming aware of a personal data breach involving personal data processed under this DPA and will reasonably respond to Customer’s request for further information so that Customer may fulfil its obligations under the Data Protection Laws.
Record of Processing Activities
NetCore will maintain all records required by the Data Protection Laws and, to the extent applicable to the processing of the personal data on behalf of Customer, make them available as required.
Lawful Basis for Processing
Customer warrants that, where required by the Data Protection Laws, it has provided notice to any and all data subjects and has received requisite consent from the data subject or its legally authorised representative or guardian.
Jurisdiction Specific Terms
To the extent that NetCore is processing any personal data originating from or otherwise subject to the Data Protection Laws of any of the jurisdictions listed below, the terms specified therein with respect to the applicable jurisdiction(s) apply in addition to the foregoing terms
European Economic Area, United Kingdom and Switzerland
1. To the extent that Customer transfers personal data from the European Economic Area (“EEA”), the United Kingdom (“UK”) or Switzerland to NetCore located outside the EEA, UK or Switzerland, unless the parties may rely on an alternative transfer mechanism or basis under the data protection laws, the parties will be deemed to have entered into the standard contractual clauses approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 whereby:
a. Customer is the “data exporter” and NetCore is the “data importer”;
b. the footnotes, Clause 9(a) Option 1, Clause 11(a) Option and Clause 17 Option 1 are omitted, the time period in Clause 9(a) Option 2 is 14 days, and the applicable annexes are completed respectively with the information set out in the DPA and the Agreement;
c. to the extent that Customer acts as a controller and NetCore acts as a processor, Module Two applies and Modules One, Three and Four are omitted, and to the extent that each party acts as a processor, Module Three applies and Modules One, Two and Four are omitted;
d. the “competent supervisory authority” is the supervisory authority in Ireland;
e. the Clauses are governed by the law of Ireland;
f. any dispute arising from the Clauses will be resolved by the courts of Ireland; and
g. if there is any conflict between the terms of the Agreement and the Clauses, the Clauses will prevail.
2. In relation to transfers of personal data from the UK, the Clauses as implemented under section 1 above will apply subject to the following modifications:
a. the Clauses are amended as specified by Part 2 of the international data transfer addendum to the European Commission’s standard contractual clauses issued under Section 119A of the UK Data Protection Act 2018, as may be amended or superseded from time to time (“UK Addendum”);
b. tables 1 to 3 in Part 1 of the UK Addendum are completed respectively with the information set out in the DPA and the Agreement (as applicable); and
c. table 4 in Part 1 of the UK Addendum is completed by selecting “neither party”.
3. In relation to transfers of personal data from Switzerland, the Clauses as implemented under section 1 above will apply subject to the following modifications:
a. references to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss Federal Act on Data Protection (“FADP”);
b. references to specific Articles of “Regulation (EU) 2016/679” shall be replaced with the equivalent article or section of the FADP;
c. references to “EU”, “Union”, “a Member State” and “Member State law” shall be replaced with references to “Switzerland” or “Swiss law”, as applicable;
d. the term “member state” shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of accessing their rights;
e. Clause 13(a) and Part C of Annex I are not used and the “competent supervisory authority” is the Swiss Federal Data Protection Information Commissioner;
f. the Clauses are governed by the law of Switzerland; and
g. any dispute arising from the Clauses will be resolved by the courts of Switzerland.
United States of America
To the extent that NetCore is processing on behalf of Customer any personal information in scope of the California Consumer Privacy Act of 2018 (“CCPA”), as amended by the California Privacy Rights Act of 2020, and its implementing regulations (collectively, the “CPRA”), effective as of January 1, 2023:
1. NetCore is prohibited from selling or sharing personal information it collects (as that term is defined in the CPRA) pursuant to the Agreement.
2. The specific business purpose (as that term is defined in the CPRA) for which NetCore is processing personal information pursuant to the Agreement is to provide, manage and secure the Services, and Customer is disclosing the personal information to NetCore only for the limited and specified business purpose set forth in the Agreement.
3. NetCore is prohibited from retaining, using, or disclosing the personal information that it collected pursuant to the Agreement for any purpose other than for the business purpose specified in the Agreement or as otherwise permitted by the CPRA.
4. NetCore is prohibited from retaining, using, or disclosing the personal information that it collected pursuant to the Agreement for any commercial purpose (as that term is defined in the CPRA) other than the business purposes specified in the Agreement, unless expressly permitted by the CPRA.
5. NetCore is prohibited from retaining, using, or disclosing the personal information that it collected pursuant to the Agreement outside the direct business relationship between NetCore and Customer, unless expressly permitted by the CPRA.
6. NetCore is required to comply with all applicable sections of the CPRA, including — with respect to the personal information that NetCore collected pursuant to the Agreement — providing the same level of privacy protection as required of businesses by the CPRA.
7. NetCore grants Customer the right to take reasonable and appropriate steps to ensure that NetCore uses the personal information that it collected pursuant to the Agreement in a manner consistent with Customer’s obligations under the CPRA.
8. NetCore is required to notify Customer after it makes a determination that it can no longer meet its obligations under the CPRA.
9. NetCore grants Customer the right, upon notice, to take reasonable and appropriate steps to stop and remediate NetCore’s unauthorized use of personal information.
10. NetCore is required to enable Customer to comply with consumer requests made pursuant to the CPRA or Customer is required to inform NetCore of any consumer request made pursuant to the CPRA that they must comply with and provide the necessary information to NetCore to comply with the request.
To the extent that NetCore is processing on behalf of Customer any personal data in scope of the Virginia Consumer Data Protection Act (VCDPA), effective as of January 1, 2023, NetCore shall:
1. Ensure that each person processing personal data is subject to a duty of confidentiality with respect to the data;
2. At Customer's direction, delete or return all personal data to Customer as requested at the end of the provision of the Services, unless retention of the personal data is required by law;
3. Upon the reasonable request of Customer, make available to Customer all information in its possession necessary to demonstrate its compliance with the obligations under the VCDPA;
4. Allow, and cooperate with, reasonable assessments by Customer or Customer’s designated assessor; alternatively, NetCore may arrange for a qualified and independent assessor to conduct an assessment of NetCore’s policies and technical and organizational measures in support of the obligations under the VCDPA using an appropriate and accepted control standard or framework and assessment procedure for such assessments. NetCore shall provide a report of such assessment to Customer upon request.
5. Engage any subcontractor pursuant to a written contract in accordance with the VCDPA that requires the subcontractor to meet the obligations of NetCore with respect to personal data.
Updated 4 months ago