Data Processing Addendum

This Data Processing Addendum (“DPA”) is entered into by and between Netzilo and Customer and sets forth the parties’ obligations with respect to the Processing of Personal Data (definitions below). For purposes of this DPA, the “Agreement” refers to either the Netzilo Terms of Service or the Main Service Agreement between you and Netzilo (as applicable to you). This DPA is incorporated by reference into the Agreement.

1. Definitions.

Some capitalized terms are defined in this section, and others are defined contextually elsewhere in the DPA. Any capitalized terms that are not defined in this DPA have the meanings assigned to such terms in the Agreement.

1.1 “Data Privacy Laws” means all applicable laws, regulations, and other legally binding requirements in any jurisdiction relating to privacy, data protection, data security, breach notification, or the Processing of Personal Data, including to the extent applicable the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”), the United Kingdom Data Protection Act of 2018 (“UK Privacy Act”), the Swiss Federal Act on Data Protection (“FADP”), the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. and associated amendments and regulations thereto (“CCPA”). For the avoidance of doubt, if Netzilo’s Processing activities involving Personal Data are not within the scope of a given Data Privacy Law, such law is not applicable for purposes of this DPA.

1.2 “Data Subject” means an identified or identifiable natural person about whom Personal Data relates.

1.3 “EU SCCs” means the Standard Contractual Clauses issued pursuant to Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.

1.4 “Personal Data” includes “personal data,” “personal information,” “personally identifiable information,” and similar terms, and such terms will have the same meaning as defined by applicable Data Privacy Laws, that is Processed in connection with the performance of the Netzilo Solution under your Agreement. In light of the protections afforded by Data Privacy Laws and this DPA, Personal Data is not considered Confidential Information under the Agreement.

1.5 “Process” and “Processing” mean any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.

1.6 “Subprocessing” means any sub-contracted Processing that relates directly to the provision of the Netzilo Solution. This does not include ancillary services, such as telecommunication services, postal or transport services, maintenance and user support services or the disposal of data carriers, as well as other measures to ensure the confidentiality, availability, integrity and resilience of the hardware and software of data processing equipment. A “Subprocessor” is the person with which Netzilo has sub-contracted such Processing.

1.7 “Subprocessor List” means the list of Subprocessors available at Subprocessors 

1.8 “UK SCC’s” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, as published by the UK Information Commissioner’s Office and in force as of 21 March 2022.

1. Details of Processing.

2.1 Scope and Purposes. Netzilo will act as a “[sub]processor” or “service provider” (as defined in and as applicable under applicable Data Privacy Laws) and will Process Personal Data in connection with the Netzilo Solution solely: to fulfill our obligations to you under the Agreement, including this DPA; on your behalf pursuant to your instructions; and in compliance with applicable Data Privacy Laws. The scope, nature, purposes, and duration of the Processing, the types of Personal Data Processed, and the Data Subjects concerned are set forth in this DPA, including without limitation Schedule C to this DPA. The details provided in Schedule C are deemed to satisfy any requirement to provide such details under any Data Privacy Law.

2.2 Restrictions. In compliance with Data Privacy Laws, Netzilo will not: (i) “sell” Personal Data (as such term in quotes is defined in applicable Data Privacy Laws); (ii) “share” or Process Personal Data for purposes of “cross-context behavioral advertising” or “targeted advertising” (as such terms in quotes are defined in applicable Data Privacy Laws); (iii) combine Personal Data with personal information received from other sources as specifically prohibited under Data Privacy Laws; (iv) attempt to link, identify, or otherwise create a relationship between Personal Data and non-personal data or any other data without your express authorization; or (v) otherwise Process Personal Data for any purpose other than for the specific purposes set forth herein.

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1. Requirements and Commitments.

3.1 Netzilo:

3.1.1 Will ensure that the persons we authorize to Process the Personal Data are subject to a written confidentiality agreement covering the Personal Data or are under an appropriate statutory obligation of confidentiality.

3.1.2 If we receive any requests from Data Subjects seeking to exercise any rights afforded to them under Data Privacy Laws regarding their Personal Data, and to the extent legally permitted, will promptly notify you or refer the Data Subjects to you for handling. Such requests related to Personal Data may include: access, rectification, restriction of processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or to not be subject to automated individual decision making (each, a “Data Subject Request”). Netzilo will not respond to such Data Subject Requests itself, and you authorize Netzilo to redirect the Data Subject Request as necessary to you for handling. In the event you are unable to address a Data Subject Request through self-service capabilities, Netzilo will, upon your request, provide commercially reasonable efforts to assist you in responding to the Data Subject Request, to the extent we are legally permitted to do so and the response to such Data Subject Request is required under Data Privacy Laws. To the extent legally permitted, you will be responsible for any costs arising from Netzilo’s provision of this additional support to assist you with a Data Subject Request.

3.1.3 To the extent legally permitted, will notify you without undue delay if it receives a legally binding request for disclosure of or access to Personal Data from a public authority (including judicial or administrative authorities, or national security or intelligence agencies) or becomes aware of any direct access by a public authority to Personal Data. Such notification will include information about the Personal Data requested or accessed, the requesting or accessing authority, the legal basis for the request or access, and any response provided. If Netzilo is prohibited by applicable law or regulation from notifying you or disclosing the details of a public authority request to you, Netzilo will use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible.

3.1.4 Will use reasonably available legal mechanisms to challenge any binding legal requests for disclosure of or access to Personal Data made by a public authority that it receives, as well as any non-disclosure provisions attached to any such request. Netzilo will provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

3.1.5 To the extent legally permitted, and no more than once per calendar year unless otherwise required by Data Privacy Laws, will, upon Customer’s written request, provide a report to Customer regarding binding legal requests for disclosure of or access to Personal Data it has received from public authorities (including with respect to national security requests), such report to include the number of requests, the type of Personal Data requested, the requesting authority(ies), whether the requests have been challenged, and the outcome of such challenges. Requests for such transparency reports should be sent to: [email protected].

3.1.6 Will promptly and without undue delay notify Customer if we determine that either: (i) we can no longer meet our obligations under this DPA or applicable Data Privacy Laws; or (ii) in our opinion an instruction from Customer infringes applicable Data Privacy Laws; and await your further instructions. Such notice will entitle you to terminate the Agreement (or, if applicable, only the affected Order Form(s)) and receive a prompt pro-rata refund of any prepaid amounts thereunder. This right to terminate and refund will be your sole and exclusive remedy.

3.1.7 Certifies that we understand our obligations under this DPA (including without limitation the restrictions under this Section 3.1) and that we will comply with them.

3.2 Each party:

3.2.1 To the extent legally permitted, will notify the other party without undue delay of any inspections or measures conducted by that party’s supervisory or regulatory authority, insofar as they relate to this DPA. Each party will cooperate with the supervisory authority of the other party to aid in their supervisory or regulatory authority’s performance of its tasks (insofar as they relate to this DPA) at the reasonable cost and expense of the party being inspected. In addition, at Customer’s reasonable cost and expense, Netzilo will provide Customer with reasonable cooperation and assistance for Customer’s consultation with regulatory authorities in relation to the Processing or proposed Processing of Personal Data, including complying with any obligation applicable to Netzilo under Data Privacy Laws to consult with a supervisory or regulatory authority in relation to Netzilo’s Processing or proposed Processing of Personal Data.

3.2.2 To the extent legally permitted, will inform Data Subjects of a contact point authorized to handle Data Subject complaints regarding the Processing of Personal Data under this DPA. Unless prohibited by applicable law, each party will promptly notify the other party of any complaints or Claims regarding the Processing of Personal Data under this DPA. The parties will work together and provide reasonable cooperation and assistance to each other to promptly address any complaint or respond to the Claim (as applicable).

3.2.3 Will provide reasonable assistance to and cooperation with the other party for their performance of a data protection impact assessment or privacy impact assessment of Processing or proposed Processing activities, when required by applicable Data Privacy Laws.

3.2.4 Understands and acknowledges that each party’s successful compliance with this DPA and Data Privacy Laws will require the reasonable communication, cooperation and assistance of the other party. To that end, each party commits that it will operate in good faith and provide such reasonable cooperation and assistance.

1. Security Measures. Netzilo places great importance on the security of the Netzilo Solution, and we have adopted a variety of administrative, technical, physical, and organizational measures designed to protect the Netzilo Solution against accidental or unlawful destruction, loss, alteration, disclosure or access (collectively the “Security Measures”). Netzilo will maintain our Security Measures to provide a level of protection that is appropriate to the risks concerning confidentiality, integrity, availability and resilience of our systems and the Netzilo Solution, while also taking into account the state of the art, implementation costs, the nature, scope and purposes of Processing, as well as the probability of occurrence and the severity of the risk to the rights and freedoms of Data Subjects. Netzilo’s Security Measures are as described in Schedule D.
2. Personal Data Breaches. Netzilo will notify you without undue delay (and in any event within 72 hours) of any known breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed (a “Personal Data Breach”). We will also provide reasonable assistance to you in your compliance with your Personal Data Breach-related obligations, including without limitation by: (a) taking steps to mitigate the effects of the Personal Data Breach and reduce the risk to Data Subjects whose Personal Data was involved (such steps to be determined by Netzilo in our sole discretion); and (b) providing you with the following information, to the extent known: (i) the nature of the Personal Data Breach, including, where possible, how the Personal Data Breach occurred, the categories and approximate number of Data Subjects concerned, and the categories and approximate number of Personal Data records concerned; (ii) the likely consequences of the Personal Data Breach; and (iii) the measures we have taken or propose to take to address the Personal Data Breach, including where appropriate measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification will contain the information then available and further information will, as it becomes available, subsequently be provided without undue delay.
3. Subprocessors. You acknowledge and agree that Netzilo may use its Affiliates and third party Subprocessors to Process Personal Data in accordance with this DPA and applicable Data Privacy Laws. Where Netzilo sub-contracts any of its rights or obligations concerning Personal Data, Netzilo will take steps to select and retain Subprocessors that are capable of maintaining appropriate privacy and security measures to protect Personal Data consistent with this DPA and applicable Data Privacy Laws. Netzilo will remain liable for the acts and omissions of its Subprocessors as if they were its own. You hereby consent to the use of Subprocessors listed at the Subprocessor List as of the effective date of this DPA. Netzilo will maintain the Subprocessor List and will provide customers with reasonable notice of any new subprocessor added to the list. The Subprocessor List page contains a mechanism to subscribe to notifications of updates to the Subprocessor List, and Netzilo will provide details of any such changes solely via this subscription mechanism. If you object to a new Subprocessor, you must notify Netzilo of your objection, if any, in writing within ten (10) days of receipt of information about the change. You will be entitled to terminate the Agreement with immediate effect and without liability in the event Netzilo does not consider and respond to your objections within a commercially reasonable period of time. Upon such termination, Netzilo will refund any prepaid fees covering the Netzilo Solution on a pro rata basis following the effective date of such termination. This right to terminate and refund will be Customer’s sole and exclusive remedy.
4. International Data Transfers.,

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7.1 Netzilo will not engage in any cross-border Processing of Personal Data, or transmit, directly or indirectly, any Personal Data to any country outside of the country from which such Personal Data was collected, without complying with applicable Data Privacy Laws and the provisions in this Section 7. Where Netzilo engages in an onward transfer of Personal Data, Netzilo shall ensure that, where legally required, a lawful data transfer mechanism is in place prior to transferring Personal Data from one country to another. Customer will ensure that Customer and Customer’s Permitted Users are entitled to transfer the Personal Data to Netzilo so that Netzilo may lawfully Process the Personal Data in accordance with this DPA, including without limitation by sub-contracting any Processing to an Affiliate or third party Subprocessor.

7.2 To the extent legally required, the EU SCCs form part of this DPA and will be deemed completed as set forth in Schedule A. In the event of a conflict between the terms of the EU SCCs and this DPA, the EU SCCs will prevail.

7.3 To the extent legally required, the UK SCCs form part of this DPA and will be deemed completed as set forth in Schedule B. In the event of a conflict between the terms of the UK SCCs and this DPA, the UK SCCs will prevail.

7.4 With respect to Personal Data transferred from Switzerland for which Swiss law (and not the law in any European Economic Area jurisdiction or the United Kingdom) governs the international nature of the transfer, references to the GDPR in Clause 4 of the EU SCCs are, to the extent legally required, amended to refer to the Swiss Federal Data Protection Act or its successor instead, and the concept of supervisory authority will include the Swiss Federal Data Protection and Information Commissioner. In the event of a conflict between the terms of the EU SCCs as amended by this Section 7.1.3 and this DPA, the EU SCCs as amended by this Section 7.1.3 will prevail.

1. Auditing Compliance.

8.1 Upon your written request, and no more than once during each Order Form Term or Subscription Term (as applicable), we will provide you with our most recent security review reports and/or applicable certifications for the Netzilo Solution and provide reasonable assistance and information to you to understand the information in such reports.

8.2 If you have a reasonable objection that the information provided is not sufficient to demonstrate Netzilo’s compliance with this DPA, you may conduct an audit, or select a mutually-agreed upon third-party to conduct an audit, of Netzilo’s practices related to Processing Personal Data in compliance with this DPA, at your sole expense (an “Audit”). General compliance Audits shall occur not more than once every twelve (12) calendar months. To the extent you use a third-party representative to conduct the Audit, you will ensure that such third-party representative is bound by obligations of confidentiality no less protective than those contained in this DPA and the Agreement. You will provide Netzilo with at least thirty (30) days prior written notice of its intention to conduct an Audit. Before any Audit, the parties will mutually agree upon the scope, timing, and duration of the Audit, as well as the Netzilo reimbursement rate for which you will be responsible. All reimbursement rates will be reasonable, taking into account the resources expended by or on behalf of Netzilo. You and your third-party representatives will conduct Audits: (i) acting reasonably, in good faith, and in a proportional manner, taking into account the nature and complexity of the Netzilo Solution; and (ii) in a manner that will result in minimal disruption to Netzilo’s business operations and during Netzilo’s normal business hours. Neither you nor your third-party representatives will be entitled to receive data or information of other Netzilo customers or any other Netzilo Confidential Information that is not directly relevant for the authorized purposes of the Audit in accordance with this provision. You will promptly provide us with the Audit results upon completion of the Audit. All Audit related materials will be considered “Confidential Information” subject to the confidentiality provisions of the Agreement.

1. Retention; Return or Destruction. Netzilo will retain Personal Data in accordance with its standard data retention policies and procedures (“Retention Procedures”). Upon your written request, Netzilo will make available to you those portions of its Retention Procedures, redacted as necessary to protect Netzilo Confidential Information, relevant to our Processing of your Personal Data. Except to the extent required otherwise by Data Privacy Laws, Netzilo will, at your choice and upon your written request, return to you or securely destroy all Personal Data upon such request or at termination or expiration of the Agreement. Netzilo will provide you with a certificate of destruction only upon your written request. In case of local laws applicable to Netzilo that prohibit the return or deletion of Personal Data, we warrant that we will continue to ensure compliance with this DPA and will only process the Personal Data to the extent and for as long as required under such local laws.
2. Updates to this DPA. We may need to update this DPA from time to time as laws, regulations and industry standards evolve, or as we make changes to our business or the Netzilo Solution. For example, if we release a new feature, product or service, we may need to update the information in the Schedules. If that happens, we will promptly post the revised DPA and update the “last updated” date. If we make changes that materially change the parties’ rights or obligations under this DPA, we will provide additional notice in accordance with applicable legal requirements, such as via email, on our website, or through the Netzilo Solution. For the sake of clarity: updating this DPA to include a newly released feature, product or service does not by default constitute such a material change; and we will only make updates for features, products or services that are generally released (not for any that are in Research). By continuing to access and use the Netzilo Solution after the “last updated” date of the revised DPA, you agree to be bound by the revised DPA. If you do not agree with the revised DPA, do not use the Netzilo Solution.
3. Miscellaneous. The effective date of this DPA shall be the same as that for the Agreement. Each party represents, warrants, and covenants that it understands and will comply with the restrictions and obligations set forth in this DPA. Each party further represents, warrants, and covenants that it will comply with all Data Privacy Laws applicable to such party in its role as data controller, business, data processor, service provider, or subprocessor (as applicable under Data Privacy Laws). If applicable to Customer, Customer represents and warrants that it is authorized to enter into this DPA, issue instructions, and make and receive any communications or notifications in relation to this DPA on behalf of Customer Affiliates. The parties acknowledge and agree that the exchange of Personal Data between the parties does not constitute a “sale” of Personal Data under any US Data Privacy Laws, and does not form part of any monetary or other valuable consideration exchange between the parties with respect to the Agreement or this DPA. Each party’s liability arising out of or related to this DPA is subject to the “Limitations of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party under the Agreement and this DPA together. The provisions of this DPA survive the termination or expiration of the Agreement for so long as Netzilo or its Subprocessors Process the Personal Data.

SCHEDULE A

EU SCCS – Modules Two or Three

By entering into this DPA and Schedule A, the parties are deemed to be signing the EU SCCs, including without limitation the applicable Annex Information set forth below. Any undefined capitalized terms used in this Schedule A have the meanings assigned to such terms in the EU SCCs.

1. Module Two or Module Three of the EU SCCs will apply as applicable to you.
2. The docking option under Clause 7 (Optional – Docking Clause) will apply.
3. This DPA and the Agreement are Customer’s complete and final instructions at the time of execution of the DPA for the Processing of Personal Data. Any additional or alternate instructions must be consistent with the terms of the DPA and the Agreement.
4. For purposes of Clause 8.1(a) (Instructions), the instructions will be deemed provided as set forth in Section 2 of the DPA, and include onward transfers to Subprocessors located outside the EU / EEA for the purpose of providing the Netzilo Solution.
5. For purposes of Clause 8.6(a) (Security of processing), Customer is solely responsible for making an independent determination as to whether the Security Measures set forth in Schedule D meet Customer’s requirements. By signing this DPA, Customer agrees that such measures provide a level of security appropriate to the risk with respect to its Personal Data.
6. For purposes of Clause 8.6(c), any personal data breach will be handled in accordance with Section 5 of the DPA.
7. The parties agree that the audits described in Clause 8.9 (Documentation and Compliance) will be carried out in accordance with Section 8 of the DPA.
8. For purposes of Clause 9(a) (Use of Subprocessors), Customer will be deemed to have given general written authorization in accordance with Section 6 of the DPA.
9. The parties agree that the certificate of deletion of Personal Data that is described in Clauses 8.5 (Duration of processing and erasure or return of data) and 16(d) (Non-compliance with the Clauses and termination) will be carried out in accordance with Section 9 of the DPA.
10. For purposes of Clause 15(1)(a) (Notification), Netzilo will notify Customer only and not the Data Subject(s) in case of requests from public authorities. Customer will be solely responsible for promptly notifying the Data Subject(s) as necessary.
11. For purposes of Clause 17 (Governing law), the parties choose Option 1 (the law of an EU Member State that allows for third-Party beneficiary rights) and agree that the EU SCCs will be governed by the laws of Ireland.
12. For purposes of Clause 18 (Choice of forum and jurisdiction), the parties agree that any dispute arising from the EU SCCs will be resolved by the courts in Ireland. A Data Subject may also bring legal proceedings against Customer and/or Netzilo before the courts of the Member State in which the Data Subject has their habitual residence. The parties agree to submit themselves to the jurisdiction of such courts.

Annex I(A): List of Parties

​Annex I(B): Description of Processing & Transfer

​As provided in Schedule C to this DPA.

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Annex I(C): Competent Supervisory Authority

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The competent supervisory authority will be in accordance with the provision applicable to Customer as provided in Clause 13(a) of the EU SCCs, and where possible, will be the Irish Data Protection Commissioner.

Annex II: Technical and Organizational Measures

As provided in Schedule D to this DPA.

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Annex III: List of Subprocessors

Not applicable; Customer has given general written authorization in accordance with Section 6 of the DPA. Netzilo’s current list of Subprocessors as of the effective date, for which Customer grants general written authorization by signing this DPA, is available at the Subprocessor List.

SCHEDULE B

UK SCCS

United Kingdom International Data Transfer Agreement

By entering into this DPA and Schedule B, the parties are deemed to be signing the UK SCCs, including without limitation the Mandatory Clauses in Part 2 and its applicable Tables and Appendix Information. The parties agree that this Schedule B appends Schedule A. Any undefined capitalized terms used in this Schedule B have the meanings assigned to such terms in the UK SCCs.

Table 1: List of Parties

Table 2: Selected SCCs, Modules and Selected Clauses

The “Approved EU SCCs” referenced in Table 2, to which this Addendum is appended, will be the EU SCCs as executed by the parties and completed as set forth in Schedule A.

Table 3: Appendix Information

As provided in Schedule A, with specific reference to Annex I(A), Annex I(B), Annex II, and Annex III.

Table 4: Ending this Addendum with the Approved Addendum Changes

Either party may end the UK SCCs as set out in Section 19 of the UK SCCs.

SCHEDULE C

Details of Processing

SCHEDULE D

SECURITY MEASURES

The following provides an overview of some of Netzilo’s key Security Measures. More information is available at Legal or its successor webpages. The Netzilo Solution and security standards are subject to evolving risks, technical progress, and further development, and we reserve the right to implement alternative Security Measures or make future replacements or updates to our Security Measures as determined by us in our sole discretion.

Encryption

• At Rest: Data resides in the production environment encrypted with at least AES-256.
• In Transit: All network communication uses at least TLS v1.2.

Password Hashing

We do not store or hash passwords, and have introduced more secure authentication methods as part of the Netzilo Solution.

Payment Information

All payments made to Netzilo go through a PCI-compliant payment processor.

Standards Based Identity

We support Single Sign On (SSO) with multiple identity providers via SAML 2.0. We also offer customers the option to use their own identity provider (IdP).

Infrastructure

We use trusted cloud providers for our service and leverage their tools to set up appropriate firewall rules, intrusion, and DMZ policies. Every component of our infrastructure has redundancy. We have an automated process that patches our virtual machines on a regular cadence. We utilize a Web Application Firewall in addition to other technologies to perform real-time monitoring and proactive blocking of malicious user behavior. All actions on the back-end are logged.

Continuous Security Assessments

We periodically use an independent third party to perform network penetration tests, application testing, and cloud assessments. Our SOC 2 report is available to Netzilo customers on the Netzilo website or upon request (subject to confidentiality).

Vendor Selection

All of our vendors offer industry-leading products and go through an exhaustive security review as a standard part of our vendor management policy, to ensure their practices meet our security and compliance standards.‍

Personnel

Level of access is determined by role. Logical access reviews are performed periodically and access is immediately removed when no longer necessary. Multi-factor authentication is enforced for all personnel. Personnel devices have security features enabled, such as antivirus, disk encryption, automatic device blocking, and security patches. We run background checks and sign confidentiality agreements with personnel in accordance with applicable laws. We regularly provide security training for personnel.

Policies & Procedures

Among other company policies and plans, Netzilo has a Business Continuity Plan / Disaster Recovery policy that is routinely tested to maximize availability, and an incident response policy and plan.