Layer0 Data Processing Addendum

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: 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:

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.  

Annex A – Details of Processing

(a)            Duration.  The Subscription Term plus the period from the expiry of the Subscription Term until deletion of the Customer Personal Data by Layer0 in accordance with the Agreement.

(b)            Categories of data: In providing the Products to Customer, Layer0 may process one or more of the following categories of data:

Personal data in Collected Data: personal data included in Collected Data, which includes any personal data that End Users may input onto the Project through web forms or other similar functionality as part of the End User's session with the Project and that Layer0 transmits to Customer via the Products. The Products are not designed to store or cache Collected Data but Layer0 may process such information as a passive conduit when transferring Collected Data to Customer. Customer determines through design and configuration of its Project what End User personal data will flow across Layer0 servers, but this information typically includes: (i)End User contact information; (ii) location information; and (iii) queries, complaints, requests for information or any other information that Customer has configured its Project to collect.

(c)            Personal data in Service Data: Personal data included in Service Data which includes Customer account settings and similar business information which is input by or on behalf of Customer into the Service and End User Logs, which may include: (i) End User IP addresses and user agent; (ii) page activity data and URLs of sites visited with time stamps (when combined with an associated IP address); and (iii)geographic location based upon IP address and location of Layer0 server (no more granular than city level).

(d)            Categories of data subjects.  Data subjects include individuals about whom data is provided to Layer0 via the Products (by or at the direction of) Customer including End Users.  

(e)            Nature and Purposes of Processing: (i) Processing to provide the Products in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; (iii)processing initiated by Customer in its use of the Products; and (iv)processing to comply with other reasonable instructions provided by Customer (e.g. via email or support tickets) that are consistent with the terms of this Agreement (individually and collectively, the "Purpose")

(f)              Processing operations: Customer Personal Data transferred will be processed in accordance with the Agreement (including this DPA) and may be subject to the following processing activities:(i) Storage and other processing necessary to provide, maintain and improve the Products (as applicable) provided to Customer; and/or (ii) disclosures in accordance with the Agreement and/or as compelled by applicable Laws.

Annex B

This Appendix forms part of the Clauses. All defined terms used in this Appendix 3 shall have the meaning given to it in the Standard Contractual Clauses unless otherwise defined in this Appendix.  

Appendix 3 to the Standard Contractual Clauses

Clauses identified below.  Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses.  

For the purposes of this Appendix, "DPA" means the Data Processing Addendum in place between data importer and data exporter and to which these Clauses are incorporated and "Agreement" shall have the meaning given to it in the DPA.

Clause 4(h) and 8: Disclosure of these Clauses  

1.               Data exporter agrees that these Clauses constitute data importer's Confidential Information as that term is defined in the Agreement and may not be disclosed by data exporter to any third party without data importer's prior written consent unless permitted pursuant to Agreement.  This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8.

Clause 5(a): Suspension of data transfers and termination:

1.               The parties acknowledge that data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses.

2.               The parties acknowledge that if data importer cannot provide such compliance for whatever reason, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract.

3.               If the data exporter intends to suspend the transfer of personal data and/or terminate these Clauses, it shall endeavor to provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”).  

4.               If after the Cure Period the data importer has not or cannot cure the non-compliance then the data exporter may suspend or terminate the transfer of personal data immediately.  The data exporter shall not be required to provide such notice in instance where it considers there is a material risk of harm to data subjects or their personal data.

Clause 5(f): Audit:

1.               Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in Section 4 (Security and Audits) of the DPA.

Clause 5(j): Disclosure of sub processor agreements

1.               The parties acknowledge the obligation of the data importer to send promptly a copy of any onward sub processor agreement it concludes under the Clauses to the data exporter.

2.               The parties further acknowledge that, pursuant to sub processor confidentiality restrictions, data importer may be restricted from disclosing onward sub processor agreements to data exporter.  Notwithstanding this, data importer shall use reasonable efforts to require any sub processor it appoints to permit it to disclose the sub processor agreement to data exporter.

3.               Even where data importer cannot disclose a sub processor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably in connection with such sub processing agreement to data exporter.

Clause 6: Liability

1.               Any claims brought under the Clauses shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.  In no event shall any party limit its liability with respect to any data subject rights under these Clauses.

Clause 11:  Onward subprocessing

1.               The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176entitled "FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC" the data exporter may provide a general consent to onward sub processing by the data importer.

2.               Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward sub processors. Such consent is conditional on data importer’s compliance with the requirements set out in Section 8.1 (Sub-processing) of the DPA.

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