Data Processing Addendum ("DPA") forms part of Pro Softnet Corporation’s Terms of Service Agreement or other electronic agreements or mutually executed agreement between IBackup and Customer ("you" and "your") applicable to Customer’s use of the IBackup Services (the "Agreement") and reflects the Parties’ agreement with regard to Processing Customer Personal Data. Capitalized terms used but not defined in this DPA have the meanings given to them in the Agreement.
1. Purpose and Scope
In the course of providing IBackup Service to Customer pursuant to the Agreement, IBackup will Process Customer Data on your behalf. Customer Data may include Personal Data. This DPA reflects the parties’ agreement relating to the Processing of Customer Data in accordance with the requirements of Data Protection Laws and Regulations. This DPA will control in the event of any conflict with the Agreement.
2. Definitions
"Data Controller" means the entity that determines the purposes and means of Processing of Personal Data.
"Data Processor" means the entity that Processes Personal Data on behalf of the Data Controller.
"Data Protection Laws and Regulations" means any applicable data protection laws and regulations applicable to the Processing of Personal Data under the Agreement, including the applicable laws and regulations of the European Union, the European Economic Area and their member states, and Switzerland.
"Data Subject" means the individual to whom Personal Data relates.
"Personal Data" means any information relating to an identifiable or identified individual.
"Processing", "Processes" or "Process" means any operation or set of operations performed upon Personal Data whether or not by automated means, such as collection, recording, organization, storage, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, erasure, or destruction.
"Sub-processor" means IBackup’s Affiliates or other third-party service providers that Process Customer Data for IBackup.
3. Processing of Customer Data
Data Processing Roles. The Parties acknowledge and agree that with regard to the Processing of Customer Data under the Data Protection Laws and Regulations and this DPA, Customer is the Controller and IBackup is the Processor. Each Party will comply with the obligations applicable to it under the Data Protection Laws and Regulations with respect to the Processing of Customer Personal Data. IBackup has no knowledge of, or control over, the Personal Data that you provide for Processing. You are solely responsible for the accuracy, quality, and legality of the Customer Data and the means by which you acquired the Customer Data.
Data Processing Instructions. This DPA and the Agreement are your complete and final instructions to IBackup for the Processing of Customer Data. You and IBackup must agree on any additional or alternate instructions. IBackup will inform you if, in IBackup's opinion, your instructions violate Data Protection Laws and Regulations. IBackup will process Customer Data: (1) in accordance with the Agreement (including all documents incorporated in the Agreement), and (2) to comply with other reasonable instructions you provide to IBackup (including by email) where your instructions are consistent with the Agreement. IBackup will not otherwise disclose Customer Data to third parties unless required to do so by applicable law, in which case IBackup will inform you in advance unless IBackup is prohibited from doing so. IBackup will not Process Customer Data for any other purpose unless you instruct IBackup.
Scope and Duration of Processing. IBackup will Process Customer Personal Data as necessary to perform the IBackup Service pursuant to the Agreement and in accordance with this DPA. The types of Customer Personal Data and categories of Data Subjects that may be Processed under this DPA are set forth in Exhibit 1 ("Scope of Processing"). IBackup will Process Customer Personal Data for the period of the Agreement unless otherwise agreed to by the Parties in writing.
4. Rights of Data Subjects
Access, Rectification, Restriction and Deletion. IBackup will enable Customer to access, rectify, restrict processing of and delete Customer Personal Data as far as consistent with IBackup Service functionality.
Data Subject Requests. If IBackup receives a request from a Data Subject in relation to Customer Personal Data then, to the extent legally permissible, IBackup will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to any such requests including, where necessary, by using the functionality of the IBackup Service. If you do not have the ability to access, rectify, restrict, or delete Customer Personal Data as required by Data Protections Laws and Regulations, you can provide written instructions to IBackup to act on your behalf. IBackup will follow your instructions to the extent they are technically feasible and legally permissible. You will pay IBackup’s costs of providing this assistance.
Cooperation and Assistance. IBackup will assist you to address any request, complaint, notice, or communication you receive relating to IBackup’s Processing of Customer Data received from (i) a Data Subject whose Personal Data is contained within the Customer Data, or (ii) any applicable data protection authority. IBackup will also assist you with your reasonable requests for information to confirm compliance with this DPA or to conduct a privacy impact assessment. You will pay IBackup’s costs of providing assistance if the assistance exceeds the services provided under the Agreement.
5. Data Security and Confidentiality
Security Controls. IBackup maintains appropriate administrative, technical and organizational safeguards to protect Customer Data from unauthorized or unlawful Processing, from accidental loss, destruction, or damage. As described in Exhibit 2, the Security Controls include measures to help ensure ongoing confidentiality, integrity, availability and resilience of IBackup’s systems and services and for regular testing and effectiveness of controls.
IBackup Personnel. IBackup ensures that access to Customer Data is limited to those personnel who require access to Process Customer Data under the Agreement. IBackup informs its personnel engaged in the Processing of Customer Data about the confidential nature of such Customer Data. IBackup will take appropriate steps to ensure compliance with the Security Controls by its employees, contractors, and Sub-processors to the extent applicable to their scope of performance, including ensuring that all persons authorized to Process Customer Data have agreed to an appropriate obligation of confidentiality.
6. Sub-processors
Authorization and Commitments. You expressly authorize IBackup to use Sub-processors to perform specific services on IBackup’s behalf to enable IBackup to perform its obligations under the Agreement and this DPA and to provide certain services on IBackup’s behalf, such as support services. IBackup has written agreements with its Sub-processors that contain obligations substantially similar IBackup’s obligations under this DPA. IBackup will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processors. IBackup's current Sub-processors including their location and services are listed at: http://www.ibackup.com/authorized-sub-processor.htm. IBackup will continue to publish changes to its Sub-processors to this website.
Notice and Objection. You have a right to reasonably object to IBackup’s use of a new Sub-processor by notifying IBackup in writing within 10 business days after IBackup publishes notice of a new Sub-processor. If you do so, IBackup will use reasonable efforts to change the affected Software or Cloud Service, or recommend a commercially reasonable change to your configuration or use of the affected Software or Cloud Service, to avoid Processing of Customer Data by the new Sub-processor. If IBackup is unable to make or recommend such a change within a reasonable period of time, not to exceed 60 days, you may terminate only the Subscription Term for the Software and Cloud Service that IBackup cannot provide without using the new Sub-processor. You must provide written notice of termination to IBackup in accordance with the Agreement.
7. Audit and Reports
Reports. IBackup uses external auditors to verify its security measure for various security and compliance control standards and certifications. IBackup has completed the necessary audits and, upon Customer’s written request, can provide supporting documentation to demonstrate that it meets the standards defined by SSAE 16.
Audit Rights. IBackup will provide you with additional information beyond that which is stated in the Report—and will allow and contribute to audits, including inspections—reasonably necessary to demonstrate compliance with Data Protection Laws and Regulations. You will reimburse IBackup for any time taken for an audit or inspection at IBackup's then-current professional service rates. IBackup will provide those rates to you on request. You and IBackup will agree in advance on the timing, scope, duration and reimbursement rates for any audit or inspection. Customer shall promptly notify IBackup with information regarding any non-compliance discovered during the course of the audit.
8. Incident Management and Notification.
IBackup will notify you without undue delay after becoming aware of a breach of your Customer Data. To the extent known, the notice will include (i) a description of the nature of the personal data breach; (ii) the measures IBackup is taking to address the breach to the extent such measures are within IBackup’s reasonable control, including measures to mitigate its possible adverse effects.
9. Return and Deletion of Customer Data
IBackup Service provides Customer with controls to enable Customer to retrieve Customer Data at any time prior to the end of a Subscription Term. Following your Subscription Term, IBackup will delete your Customer Data in accordance with the Agreement.
10. Privacy Shield Terms for EU and Swiss Customer Data
IBackup self-certifies and complies with the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks as set forth by the Department of Commerce regarding the collection, use, and retention of Personal Data from European Union member countries and Switzerland. IBackup certifies that it adheres to the privacy shield principles and agrees to comply with the frameworks or maintain another valid mechanism to legally transfer data as prescribed by the European Commission. If IBackup determines it can no longer meet these obligations, IBackup will promptly notify you and will cease Processing your Personal Data or take reasonable and appropriate steps to remediate.