This Data Processing Addendum, including its appendices ("DPA") forms part of, and is subject to, the terms and conditions of the Layer0 Platform Subscription Agreement ("Agreement") between the party identified as the "Customer" in the Agreement and Layer0. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. This DPA reflects the parties’ agreement with respect to the terms governing Layer0's processing of Customer Personal Data protected by Data Protection Laws (as defined below). For any other data, including any admin account information, this DPA shall not apply.
Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Law, in the name and on behalf of its Affiliates permitted to use the Products pursuant to the Agreement between Customer and Layer0 and provided that such Affiliates have not entered into their own separate "Agreement" with Layer0. For the purposes of this DPA only, and except where indicated otherwise, the term "Customer" shall include Customer and such Affiliates.
The parties agree as follows:
1. Definitions
"Customer Personal Data" means any Customer Data that is protected as "personal data", "personally identifiable information" or "personal information" under applicable Data Protection Law and processed by Layer0 on behalf of Customer in connection with the Products, as more particularly described in Annex A of this DPA.
"Data Protection Law(s)" means: (i) EU Data Protection Law; and (ii) the California Consumer Privacy Act of 2018, Cal. Civ. Code 1798.100 et seq ("CCPA'") including any laws implementing, amending, revoking, or replacing the CCPA, in each case as applicable to a party's processing of Customer Personal Data under the Agreement.
"EU Data Protection Law" means (i) 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"), including any subordinate or implementing legislation; and (ii) in respect of the United Kingdom, any legislation that replaces or converts into domestic law the GDPR or any other law relating to data and privacy as a consequence of the United Kingdom leaving the European Union.
"Group" means any and all Affiliates that are part of an entity's corporate group.
"Security Incident" means any breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data transmitted, stored or otherwise processed by Layer0 and/or its Sub-processor's in connection with the provision of the Products. "Security Incident" shall not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
"Standard Contractual Clauses" means the standard contractual clauses for processors as approved by the European Commission.
"Sub-processor" means any processor engaged by Layer0 or its Affiliates to assist in fulfilling its obligations with respect to providing the Products pursuant to the Agreement or this DPA. Sub-processors may include third parties or members of the Layer0 Group but shall exclude any Layer0 employee, contractor or consultant.
The terms "controller", "personal data", "processor" and "processing" shall have the meaning given to them in EU Data Protection Law and "process", "processes" and "processed" shall be interpreted accordingly and the term "service provider" shall have the meaning given to it in the CCPA.
2. Scope and Applicability of this DPA
2.1 Scope. This DPA applies to the extent that Layer0 processes as a processor or service provider (as applicable) any Customer Personal Data protected by Data Protection Laws.
2.2 Role of the Parties. If EU Data Protection Law applies to either party's processing of Customer Personal Data, the parties acknowledge and agree that Customer is the controller of Customer Personal Data, and Layer0 shall process Customer Personal Data only as a processor on behalf of Customer, as further described in Annex A of this DPA. Any processing by either party of personal data under or in connection with the Agreement shall be performed in accordance with applicable Data Protection Laws.
2.3 Layer0 processing of personal data. Asa processor, Layer0 shall process Customer Personal Data only for the purposes described in this DPA and only in accordance with Customer's documented lawful instructions. The parties agree that the Agreement (including this DPA) sets out the Customer's complete and final instructions to Layer0 in relation to the processing of Customer Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and Layer0. Without prejudice to Section 2.4 (Customer Responsibilities), Layer0 shall notify Customer in writing, unless prohibited from doing so under Data Protection Law, if it becomes aware or believes that any data processing instructions from Customer violates applicable Data Protection Law.
2.4 Customer responsibilities. Customer is responsible for the lawfulness of Customer Personal Data processing under or in connection with the Agreement. Customer represents and warrants that (i) it has provided, and will continue to provide all notice and obtained, and will continue to obtain, all consents, permissions and rights necessary under applicable laws, including Data Protection Laws, for Layer0 to lawfully process Customer Personal Data for the purposes contemplated by the Agreement (including this DPA); (ii) it has complied with all applicable laws, including Data Protection Laws, in the collection and provision to Layer0 and its Sub-processors of such Customer Personal Data; and (iii) it shall ensure its processing instructions comply with applicable laws (including Data Protection Laws) and that the processing of Customer Personal Data by Layer0 in accordance with Customer's instructions will not cause Layer0 to be in breach of applicable Data Protection Laws.
3. Subprocessing
3.1 Authorized Sub-processors. Customer agrees that Layer0 may engage Sub-processors to process Customer Personal Data on Customer's behalf. The Sub-processors currently engaged by Layer0 and authorized by Customer are available here: https://www.layer0.co/sub-processors/. Customer may elect to be notified by Layer0 if it changes Sub-processors at least 10 days prior to any such changes by clicking here: https://www.layer0.co/sub-processors/.
3.2 Sub-processor Obligations. Layer0 shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect Customer Personal 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 Layer0 to breach any of its obligations under this DPA.
4. Security and Audits
4.1 Security Measures. Layer0 shall implement and maintain appropriate technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data as described in the Security Policy contained in here ("Security Measures"). Layer0 shall ensure that any person who is authorized by Layer0 to process Customer Personal Data shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.2 Security Incident Response. Upon becoming aware of a Security Incident, Layer0 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.
4.3 Updates to Security Measures. Customer acknowledges that the Security Measures are subject to technical progress and development and that Layer0 may update or modify the Security Measures from time to time as specified in Section 20.5 (Amendments) of the Agreement.
4.4 Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Products, including securing its account authentication credentials, protecting the security of Customer Personal Data when in transit to and from the Products and taking any appropriate steps to securely encrypt or backup any Customer Personal Data processed in connection with the Products.
4.5 Security Audits. On written request from Customer, Layer0 shall provide written responses (on a confidential basis) to all reasonable requests for information made by Customer related to its processing of Customer Personal Data, including responses to information security and audit questionnaires that are necessary to confirm Layer0 compliance with this DPA, provided that Customer shall not exercise this right more than once in any 12 month rolling period. Notwithstanding the foregoing, Customer may also exercise such audit right in the event Customer is expressly requested or required to provide this information to a data protection authority, or Layer0 has experienced a Security Incident, or other reasonably similar basis.
5. International Transfers
5.1 Processing locations. Layer0 may transfer and process Customer Personal Data to and in the United States and anywhere else in the world where Layer0, its Affiliates or its Sub-processors maintain data processing operations. Layer0 shall at all times ensure such transfers are made in compliance with the requirements of Data Protection Laws and this DPA.
5.2 Transfer mechanism. Where Layer0 is a recipient of Customer Personal Data protected by EU Data Protection Laws in a third country not recognised as providing adequate protection for personal data (as described in EU Data Protection Laws), Layer0 agrees to abide by and process such Customer Personal Data in compliance with the Standard Contractual Clauses, which are incorporated in full by reference and form an integral part of this DPA. For the purposes of the descriptions in the Standard Contractual Clauses: (i) Layer0 agrees that it is a "data importer" and Customer is the "data exporter" (notwithstanding that Customer may itself bean entity located in a third country); (ii) Annex A of this DPA and the Security Measures shall replace Appendix 1 and Appendix 2 of the Standard Contractual Clauses; and (ii) Annex B shall form Appendix 3 of the Standard Contractual Clauses. It is not the intention of either party, nor the effect of this DPA, to contradict or restrict any of the provisions set forth in the Standard Contractual Clauses. Accordingly, if and to the extent the Standard Contractual Clauses conflict with any provision of this DPA, the Standard Contractual Clauses shall prevail to the extent of such conflict.
6. Deletion of Customer Personal Data
6.1 Deletion on termination. Upon termination or expiry of the Agreement, Layer0 shall delete all Customer Personal Data (including copies) in its possession or control in accordance with the Agreement, save that this requirement shall not apply to the extent Layer0 is required by applicable law to retain some or all of the Customer Personal Data, or to Customer Personal Data it has archived on back-up systems, which data Layer0 shall securely isolate and protect from any further processing and delete in accordance with its deletion practices, except to the extent required by applicable law.
6. Deletion of Customer Personal Data
6.1 Deletion on termination. Upon termination or expiry of the Agreement, Layer0 shall delete all Customer Personal Data (including copies) in its possession or control in accordance with the Agreement, save that this requirement shall not apply to the extent Layer0 is required by applicable law to retain some or all of the Customer Personal Data, or to Customer Personal Data it has archived on back-up systems, which data Layer0 shall securely isolate and protect from any further processing and delete in accordance with its deletion practices, except to the extent required by applicable law.
7. Rights of Data Subjects and Cooperation
7.1 Data Subject Request. Layer0 shall, taking into account the nature of the processing, provide all reasonable cooperation to assist Customer by appropriate technical and organisational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Customer Personal Data under the Agreement. In the event that any such request is made to Layer0 directly, Layer0 shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Layer0 is required to respond to such a request, Layer0 shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
7.2 Subpoenas and Court Orders. If a law enforcement agency sends Layer0 a demand for Customer Personal Data (for example, through a subpoena or court order), Layer0 shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Layer0 is legally prohibited from doing so.
8. Jurisdiction Specific Terms Deletion of Customer Personal Data
8.1 Europe: To the extent the Customer Personal Data is protected by EU Data Protection Laws, the following terms shall apply in addition to the terms in the remainder of this DPA:
(a) Objection to Sub-processors. Customer may object in writing to Layer0’s appointment of a new Sub-processor on reasonable grounds relating to data protection (e.g. if making Customer Personal Data available to the Sub-processor may violate applicable Data Protection Law or weaken the protections for such Customer Personal Information) by notifying Layer0 promptly in writing within five (5) calendar days of receipt of Layer0 notice in accordance with Section 3.1 above. Such notice shall explain the reasonable grounds for the objection and the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If no such resolution can be reached, Layer0 will, at its sole discretion, either not appoint Sub-processor, or permit Customer, as its sole and exclusive remedy, to terminate the Agreement for convenience upon notice to Layer0 (without prejudice to any fees incurred by Customer prior to termination).
(b) Data Protection Impact Assessment. To the extent Layer0 is required under EU Data Protection Law, Layer0 shall provide reasonably requested information regarding Layer0 processing of Customer Personal Data under the Agreement to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
1.2 California: Pursuant to the CCPA (where applicable), Layer0 agrees that: (a)Layer0 is acting solely as a service provider with respect Customer Personal Data; (b) Customer Personal Data was not sold to Layer0 and Layer0 will not sell, or otherwise disclose for monetary or other valuable consideration, Customer Personal Data. All consideration paid or received by Layer0 or Customer under the Agreement is in connection with the services rendered under such Agreement and shall not be allocated to Customer Personal Data; (c) Layer0 shall not retain, use or disclose Customer Personal Data for any purpose other than for the Purposes (as defined in Annex A); (d) Layer0 shall not retain, use or disclose Customer Personal Data outside of its contractual relationship with Customer under the Agreement; (e) Layer0 may de-identify or aggregate Customer Personal Data as part of performing the Products; and (f) Layer0 certifies that it understands and will comply with the requirements and restrictions set forth in this Section 8.2 of this DPA.
9. Limitation of Liability
9.1 Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA (including the Standard Contractual Clauses) whether in contract, tort (including negligence) or under any other theory of liability, shall be subject to the limitations and exclusions of liability in the Agreement, and any reference in provisions to the liability of a party means the aggregate liability of that party and all of its Affiliates under and in connection with the Agreement and this DPA together.
9.2 Except where applicable Data Protection Laws require a Customer Affiliate to exercise a right or seek any remedy under this DPA against Layer0 directly by itself, the parties agree that (i) solely the Customer entity that is the contracting party to the Agreement shall exercise any right or seek any remedy any Customer Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Affiliate individually but in a combined manner for all of its Affiliates together.
10. Miscellaneous
10.1 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.
10.2 This DPA shall be deemed a part of and incorporated into the Agreement so that references in the Agreement to "Agreement" shall be interpreted to include this DPA.
10.3 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.