{"id":259656,"date":"2022-10-28T16:49:53","date_gmt":"2022-10-28T16:49:53","guid":{"rendered":"https:\/\/www.webscale.com\/?page_id=258639"},"modified":"2022-10-28T16:49:53","modified_gmt":"2022-10-28T16:49:53","slug":"dpa","status":"publish","type":"page","link":"https:\/\/www.webscale.com\/dpa\/","title":{"rendered":"Data Processing Agreement"},"content":{"rendered":"

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Legal<\/h1>\n

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Data Processing Agreement<\/h2>\n

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Information Security<\/a> | Acceptable Use Policy<\/a> | Master SLA<\/a> | MSA<\/a> | DPA<\/a><\/p>\n

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Last updated February 08, 2023<\/p>\n

 <\/p>\n

EU and UK Data Processing Addendum (Processor Form)
<\/strong><\/h4>\n
\n

This EU and UK Data Processing Addendum (\u201c<\/span>DPA<\/strong>\u201d) supplements the Master Services Agreement (the \u201c<\/span>Agreement<\/strong>\u201d) entered into by and between <\/span>Webscale Networks, Inc. <\/strong>(\u201c<\/span>Company<\/strong>\u201d) and [<\/span>Customer, Inc.<\/span>] (\u201c<\/span>Customer<\/strong>\u201d). Herein, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws (defined below), in the name and on behalf of its Affiliates (defined below), if any. This DPA incorporates the terms of the Agreement, and any terms not defined in this DPA shall have the meaning set forth in the Agreement.\u00a0 <\/span><\/p>\n

    \n
  1. Definitions<\/strong>\n
      \n
    1. \u201c<\/span>Affiliate<\/strong>\u201d means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.<\/span><\/li>\n
    2. \u201c<\/span>Authorized Sub-Processor<\/strong>\u201d means a third-party who has a need to know or otherwise access Customer\u2019s Personal Data to enable Company to perform its obligations under this DPA or the Agreement, and who is either (1) listed in <\/span>Exhibit B <\/strong><\/a>or (2) subsequently authorized under Section 4.2 of this DPA.<\/span><\/li>\n
    3. \u201c<\/span>Company Account Data<\/strong>\u201d means personal data that relates to Company\u2019s relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer\u2019s account and billing information of individuals that Customer has associated with its account. Company Account Data also includes any data Company may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.<\/span><\/li>\n
    4. \u201c<\/span>Company Usage Data<\/strong>\u201d means Service usage data collected and processed by Company in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.<\/span><\/li>\n
    5. \u201c<\/span>Data Exporter<\/strong>\u201d means Customer.<\/span><\/li>\n
    6. \u201c<\/span>Data Importer<\/strong>\u201d means Company.\u00a0<\/span><\/li>\n
    7. \u201c<\/span>Data Protection Laws<\/strong>\u201d means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including: (i) the California Consumer Privacy Act (\u201c<\/span>CCPA<\/strong>\u201d), (ii) the General Data Protection Regulation (Regulation (EU) 2016\/679) (\u201c<\/span>EU GDPR<\/strong>\u201d) and the EU GDPR as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the \u201c<\/span>UK GDPR<\/strong>\u201d) (together, collectively, the \u201cGDPR\u201d), (iii) the Swiss Federal Act on Data Protection, ; (iv) the UK Data Protection Act 2018; and (v) the Privacy and Electronic Communications (EC Directive) Regulations 2003; in each case, as updated, amended or replaced from time to time. The terms \u201c<\/span>Data Subject<\/strong>\u201d, \u201c<\/span>Personal Data<\/strong>\u201d, \u201c<\/span>Personal Data Breach<\/strong>\u201d, \u201c<\/span>processing<\/strong>\u201d, \u201c<\/span>processor<\/strong>,<\/span>\u201d \u201c<\/span>controller<\/strong>,<\/span>\u201d and \u201c<\/span>supervisory<\/strong> authority<\/strong><\/span>\u201d shall have the meanings set forth in the GDPR.\u00a0\u00a0<\/span><\/li>\n
    8. \u201c<\/span>EU SCCs<\/strong>\u201d means the standard contractual clauses approved by the European Commission in Commission Decision 2021\/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time), as modified by Section 6.2 of this DPA.\u00a0<\/span><\/li>\n
    9. \u201c<\/span>ex-EEA Transfer<\/strong>\u201d means the transfer of Personal Data, which is processed in accordance with the GDPR, from the Data Exporter to the Data Importer (or its premises) outside the European Economic <\/span>
      <\/span>Area (the \u201cEEA\u201d), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR.\u00a0<\/span><\/li>\n
    10. \u00a0\u201c<\/span>ex-UK Transfer<\/strong>\u201d means the transfer of Personal Data covered by Chapter V of the UK GDPR, which is processed in accordance with the UK GDPR and the Data Protection Act 2018, from the Data Exporter to the Data Importer (or its premises) outside the United Kingdom (the \u201cUK\u201d), and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018.\u00a0<\/span><\/li>\n
    11. \u201c<\/span>Services<\/strong>\u201d shall have the meaning set forth in the Agreement.<\/span><\/li>\n
    12. \u00a0\u201c<\/span>Standard Contractual Clauses<\/strong>\u201d means the EU SCCs and the UK SCCs.\u00a0\u00a0\u00a0<\/span><\/li>\n
    13. \u201c<\/span>UK SCCs<\/strong>\u201d means the EU SCCs, as amended by the UK Addendum.\u00a0\u00a0<\/span><\/li>\n<\/ol>\n<\/li>\n
    14. Relationship of the Parties; Processing of Data<\/strong>\n
        \n
      1. The parties acknowledge and agree that with regard to the processing of Personal Data, Customer may act either as a controller or processor and, except as expressly set forth in this DPA or the Agreement, Company is a processor. Customer shall, in its use of the Services, at all times process Personal Data, and provide instructions for the processing of Personal Data, in compliance with Data Protection Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer\u2019s instructions will not cause Company to be in breach of the Data Protection Laws.\u00a0 Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Company by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Company regarding the processing of such Personal Data. Customer shall not provide or make available to Company any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Company from all claims and losses in connection therewith.\u00a0<\/span><\/li>\n
      2. Company shall not process Personal Data (i) for purposes other than those set forth in the Agreement and\/or <\/span>Exhibit A<\/strong><\/a>, (ii) in a manner inconsistent with the terms and conditions set forth in this DPA or any other documented instructions provided by Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Company is subject; in such a case, the Company shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest, or (iii) in violation of Data Protection Laws.\u00a0 Customer hereby instructs Company to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services.<\/span><\/li>\n
      3. The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in <\/span>Exhibit A<\/strong><\/a> to this DPA.<\/span><\/li>\n
      4. Following completion of the Services, at Customer\u2019s choice, Company shall return or delete Customer\u2019s Personal Data, unless further storage of such Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Company shall take measures to block such Personal Data from any further processing (except to the extent necessary for its continued hosting or processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in\u00a0 Clause 8.1(d) and Clause 8.5 of the EU SCCs (as applicable) shall be provided by Company to Customer only upon Customer\u2019s request.\u00a0<\/span><\/li>\n
      5. CCPA and VCDPA. <\/strong>The Parties acknowledge and agree that the processing of personal information or personal data that is subject to the CPRA or VCDPA shall be carried out in accordance with the terms set forth in Exhibit E<\/a>.<\/strong><\/span><\/li>\n<\/ol>\n<\/li>\n
      6. Confidentiality<\/strong>\n
          \n
        1. Company shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Company\u2019s confidentiality obligations in the Agreement. Customer agrees that Company may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this DPA, the Agreement, or the provision of Services to Customer.\u00a0\u00a0<\/span><\/li>\n<\/ol>\n<\/li>\n
        2. Authorized Sub-Processors<\/strong>\n
            \n
          1. Customer acknowledges and agrees that Company may (1) engage its Affiliates and the Authorized Sub-Processors listed in <\/span>Exhibit B<\/strong><\/a> to this DPA to access and process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the processing of Personal Data. By way of this DPA, Customer provides general written authorization to Company to engage sub-processors as necessary to perform the Services.<\/span><\/li>\n
          2. A list of Company\u2019s current Authorized Sub-Processors (the \u201c<\/span>List<\/strong>\u201d) will be made available to Customer, either attached hereto, via email or through another means made available to Customer.\u00a0 Such List may be updated by Company from time to time.\u00a0 Company may provide a mechanism to subscribe to notifications of new Authorized Sub-Processors and Customer agrees to subscribe to such notifications where available.\u00a0 At least ten (10) days before enabling any third party other than existing Authorized Sub-Processors to access or participate in the processing of Personal Data, Company will add such third party to the List and notify Customer via email. Customer may object to such an engagement by informing Company within ten (10) days of receipt of the aforementioned notice by Customer, provided such objection is in writing and based on reasonable grounds relating to data protection. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Company from offering the Services to Customer.<\/span><\/li>\n
          3. If Customer reasonably objects to an engagement in accordance with Section 4.2, and Company cannot provide a commercially reasonable alternative within a reasonable period of time, Customer may discontinue the use of the affected Service by providing written notice to Company.\u00a0 Discontinuation shall not relieve Customer of any fees owed to Company under the Agreement.\u00a0<\/span><\/li>\n
          4. If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Company, that third party will be deemed an Authorized Sub-Processor for the purposes of this DPA.<\/span><\/li>\n
          5. Company will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Company under this DPA with respect to the protection of Personal Data.\u00a0 In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Company, Company will remain liable to Customer for the performance of the Authorized Sub-Processor\u2019s obligations under such agreement.<\/span><\/li>\n
          6. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer\u2019s prior written consent to the subcontracting by Company of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Company to Customer pursuant to Clause 9(c) of the EU SCCs may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Company beforehand, and that such copies will be provided by the Company only upon request by Customer.<\/span><\/li>\n<\/ol>\n<\/li>\n
          7. Security of Personal Data.\u00a0\u00a0<\/strong>\n
              \n
            1. 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, Company shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data.<\/span> Exhibit C<\/strong><\/a> sets forth additional information about Company\u2019s technical and organizational security measures.<\/span><\/li>\n<\/ol>\n<\/li>\n
            2. Transfers of Personal Data<\/strong>\n
                \n
              1. The parties agree that Company may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Company\u2019s primary processing operations take place in the United States, and that the transfer of Customer\u2019s Personal Data to the United States is necessary for the provision of the Services to Customer. If Company transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Company will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.<\/span><\/li>\n
              2. Ex-EEA Transfers<\/strong>.<\/strong> The parties agree that ex-EEA Transfers are made pursuant to the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:
                <\/span>\n
                  \n
                1. Module One (Controller to Controller) of the EU SCCs apply when Company is processing Personal Data as a controller pursuant to Section 9 of this DPA.\u00a0\u00a0<\/span><\/li>\n
                2. Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Company is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.<\/span><\/li>\n
                3. Module Three (Processor to Sub-Processor) of the EU SCCs apply when Customer is a processor and Company is processing Personal Data on behalf of Customer as a sub-processor.<\/span><\/li>\n<\/ol>\n<\/li>\n
                4. For each module, where applicable the following applies:\u00a0<\/span>\n
                    \n
                  1. The optional docking clause in Clause 7 does not apply;<\/span><\/li>\n
                  2. In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of sub-processor changes shall be as set forth in Section 4.2 of this DPA;\u00a0<\/span><\/li>\n
                  3. In Clause 11, the optional language does not apply;\u00a0\u00a0<\/span><\/li>\n
                  4. All square brackets in Clause 13 are hereby removed;\u00a0<\/span><\/li>\n
                  5. In Clause 17 (Option 1), the EU SCCs will be governed by Irish<\/span> law;<\/span><\/li>\n
                  6. In Clause 18(b), disputes will be resolved before the courts of Ireland<\/span>.<\/strong><\/li>\n
                  7. Exhibit B<\/strong><\/a> to this DPA contains the information required in Annex I and Annex III of the EU SCCs;\u00a0<\/span><\/li>\n
                  8. Exhibit C<\/strong><\/a> to this DPA contains the information required in Annex II of the EU SCCs; and\u00a0<\/span><\/li>\n
                  9. By entering into this DPA, the parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes.\u00a0<\/span><\/li>\n<\/ol>\n<\/li>\n
                  10. Ex-UK Transfers<\/strong>. The parties agree that ex-UK Transfers are made pursuant to the UK SCCs, which are deemed entered into and incorporated into this DPA by reference, and amended and completed in accordance with the UK Addendum, which is incorporated herein as <\/span>Exhibit D<\/strong><\/a> of this DPA.\u00a0<\/span><\/li>\n
                  11. Transfers from Switzerland<\/strong>. <\/span>The parties agree that transfers from Switzerland are made pursuant to the EU SCCs with the following modifications:<\/span>\n
                      \n
                    1. The terms \u201cGeneral Data Protection Regulation\u201d or \u201cRegulation (EU) 2016\/679\u201d as utilized in the EU SCCs shall be interpreted to include the Federal Act on Data Protection of 19 June 1992 (the \u201c<\/span>FADP<\/strong>,\u201d and as revised as of 25 September 2020, the \u201c<\/span>Revised FADP<\/strong>\u201d) with respect to data transfers subject to the FADP.<\/span><\/li>\n
                    2. The terms of the EU SCCs shall be interpreted to protect the data of legal entities until the effective date of the Revised FADP.\u00a0<\/span><\/li>\n
                    3. Clause 13 of the EU SCCs is modified to provide that the Federal Data Protection and Information Commissioner (\u201c<\/span>FDPIC<\/strong>\u201d) of Switzerland shall have authority over data transfers governed by the FADP and the appropriate EU supervisory authority shall have authority over data transfers governed by the GDPR. Subject to the foregoing, all other requirements of Section 13 shall be observed.\u00a0<\/span><\/li>\n
                    4. The term \u201cEU Member State\u201d as utilized in the EU SCCs shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from exercising their rights in their place of habitual residence in accordance with Clause 18(c) of the EU SCCs.\u00a0<\/span><\/li>\n<\/ol>\n<\/li>\n
                    5. Supplementary Measures<\/strong>. In respect of any ex-EEA Transfer or ex-UK Transfer, the following supplementary measures shall apply:<\/span><\/li>\n
                    6. As of the date of this DPA, the Data Importer has not received any formal legal requests from any government intelligence or security service\/agencies in the country to which the Personal Data is being exported, for access to (or for copies of) Customer\u2019s Personal Data (\u201c<\/span>Government Agency Requests<\/span>\u201d);<\/span>\u00a0<\/strong><\/li>\n
                    7. If, after the date of this DPA, the Data Importer receives any Government Agency Requests, Company shall attempt to redirect the law enforcement or government agency to request that data directly from Customer. As part of this effort, Company may provide Customer\u2019s basic contact information to the government agency. If compelled to disclose Customer\u2019s Personal Data to a law enforcement or government agency, Company shall give Customer reasonable notice of the demand and cooperate to allow Customer to seek a protective order or other appropriate remedy unless Company is legally prohibited from doing so. Company shall not voluntarily disclose Personal Data to any law enforcement or government agency. Data Exporter and Data Importer shall (as soon as reasonably practicable) discuss and determine whether all or any transfers of Personal Data pursuant to this DPA should be suspended in the light of the such Government Agency Requests; and<\/span><\/li>\n
                    8. The Data Exporter and Data Importer will meet regularly to consider whether:<\/span>
                      (i) the protection afforded by the laws of the country of the Data Importer to data subjects whose Personal Data is being transferred is sufficient to provide broadly equivalent protection to that afforded in the EEA or the UK, whichever the case may be;
                      (ii) additional measures are reasonably necessary to enable the transfer to be compliant with the Data Protection Laws; and
                      (iii) it is still appropriate for Personal Data to be transferred to the relevant Data Importer, taking into account all relevant information available to the parties, together with guidance provided by the supervisory authorities.<\/li>\n
                    9. If Data Protection Laws require the Data Exporter to execute the Standard Contractual Clauses applicable to a particular transfer of Personal Data to a Data Importer as a separate agreement, the Data Importer shall, on request of the Data Exporter, promptly execute such Standard Contractual Clauses incorporating such amendments as may reasonably be required by the Data Exporter to reflect the applicable appendices and annexes, the details of the transfer and the requirements of the relevant Data Protection Laws.\u00a0<\/span><\/li>\n
                    10. If either (i) any of the means of legitimizing transfers of Personal Data outside of the EEA or UK set forth in this DPA cease to be valid or (ii) any supervisory authority requires transfers of Personal Data pursuant to those means to be suspended, then Data Importer may by notice to the Data Exporter, with effect from the date set out in such notice, amend or put in place alternative arrangements in respect of such transfers, as required by Data Protection Laws.<\/span><\/li>\n<\/ol>\n<\/li>\n<\/ol>\n