This Data Processing Agreement including its Attachments (“DPA”) is between Covaleyo, a division of Andromeda Software Corp., if Customer is located in Canada, or Andromeda Software Inc. doing business as Covaleyo, if Customer is located in the United States, (“Supplier”) and the entity that receives any Products from Supplier (“Customer”) pursuant to a written or electronic agreement which governs the provision of those Products (“Agreement”), and shall apply to the extent that (i) Supplier Processes Personal Data on behalf of the Customer, and (ii) either the Agreement expressly incorporates this DPA by reference or the parties sign this DPA.
This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon the earlier of signature or its incorporation into the Agreement (“Effective Date”), which incorporation may be specified in the Agreement or an executed amendment to the Agreement. In case of any conflict or inconsistency between the terms of the Agreement and this DPA, this DPA shall take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.
The term of this DPA shall follow the Term of the Agreement. Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.
“California Personal Information” means Personal Data that is subject to the CCPA.
“Canadian Privacy Laws” means the data protection and privacy laws applicable in Canada and/or its provinces, in each case as hereinafter amended, supersede, or replaced, including:
“Consumer,” “Business,” “Sell” and “Service Provider” shall have the meanings given to them in the CCPA.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Data Privacy Laws” means all applicable legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation US Privacy Laws, and Canadian Privacy Laws; in each case to the extent applicable and as amended, repealed, consolidated or replaced from time to time.
“Data Subject” means the individual to whom Personal Data relates.
“Instructions” means the written, documented instructions issued by Customer to Supplier and directing the same to perform a specific or general action with regard to Personal Data.
“Permitted Affiliates” means any of Customer’s Affiliates (as defined under the Agreement):
“Personal Data” means any information provided by or collected on behalf of Customer relating to an identified or identifiable individual where such information is protected under applicable Data Privacy Laws as personal data, personal information, personally identifiable information, or any equivalent thereof.
“Personal Data Breach” means an event that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by Supplier and/or its Sub-Processors in connection with the provision of the Products, subject to any limitations, exclusions, exceptions, or safe harbors provided for by applicable Data Privacy Laws. “Personal Data Breach” shall not include (a) any such events for which notification is not required pursuant to applicable Data Privacy Laws, or (b) unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems, except to the extent that any such unsuccessful attempts or activities must be disclosed pursuant to applicable Data Privacy Laws.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.
“Products” means the goods and services provided by Supplier to Customer under the Agreement.
“Sub-Processor” means any third-party engaged by Supplier to carry out specific Processing activities in accordance with the Instructions and subject to further limitations set forth in this DPA.
“US Privacy Laws” means the applicable legislation of the United States of America that are in effect as of the Effective Date relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, in each case as hereinafter amended, superseded, or replaced, including the following:
a. Under the CCPA. To the extent that CCPA applies to the Processing activities under the Agreement, the parties acknowledge and agree that Supplier is a Service Provider and Customer is either a (i) Business or (ii) a Service Provider acting on behalf of a Business that is not a party to this DPA. Notwithstanding the foregoing, in the event that Attachment 1, Section A identifies any purposes for which Supplier Processes Personal Data as a ‘third party’ as that term is defined under the CCPA (“CCPA Third Party”), in which case Supplier is a CCPA Third Party.
b. Under US Privacy Laws, except the CCPA. To the extent that US Privacy Laws other than the CCPA apply to the Processing activities under the Agreement, the parties acknowledge and agree that Supplier is a Processor and Customer is either (i) a Controller, or (ii) a Processor acting on behalf of a Controller that is not a party to the Agreement or this DPA.
c. Under Canadian Privacy Laws. To the extent that Canadian Privacy Laws apply to the Processing activities under the Agreement, the parties acknowledge and agree that (i) Supplier Processes Personal Data on behalf of Customer and assumes the obligations under applicable Canadian Privacy Laws that apply to that role, and (ii) Customer, through its Instructions to Supplier, determines the purposes and means of the Processing of Personal Data and assumes the obligations under applicable Canadian Privacy Laws that apply to that role.
a) Compliance with Laws. Customer shall be responsible for complying with all its obligations under applicable Data Privacy Laws and shall inform Supplier without undue delay if it is not able to comply with its responsibilities under this sub-section (a) or applicable Data Privacy Laws. In particular but without prejudice to the generality of the foregoing, Customer acknowledges and agrees that it shall be solely responsible for:
b. Instructions. The parties agree that the following constitutes Customer’s complete and final Instructions to Supplier in relation to the Processing of Personal Data: (i) the terms of the Agreement and this DPA, including the Attachments hereto, (ii) direction from Customer through its use of the Products in accordance with the Agreement, and (iii) this general authorization by Customer which hereby permits Supplier to use Personal Data for any business operations incident to providing the Products to Customer. Additional instructions outside the scope of the Instructions must be agreed to according to the process for amending the Agreement or this DPA, where applicable.
c. Security. Customer is responsible for independently determining whether the data security provided for in the Products adequately meets its obligations under applicable Data Privacy Laws. Customer is also responsible for its secure use of the Products, including protecting account access to the Products and the security of Personal Data in transit to and from the Products (including the secure backup or encryption of any such Personal Data).
a. Compliance with Instructions. Supplier shall only Process Personal Data for the purposes described in this DPA, including Attachment 1, or as otherwise agreed within the scope of Customer’s lawful Instructions, except where and to the extent otherwise permitted by applicable law. Supplier is not responsible for compliance with any Data Privacy Laws applicable to Customer or Customer’s industry that are not generally applicable to Supplier.
b. Conflict of Laws. If Supplier becomes aware that it can no longer meet its obligations under the applicable Data Privacy Laws or Process Personal Data in accordance with Customer’s Instructions due to a legal requirement under any applicable law, Supplier will:
c. Technical and Organizational Measures. Supplier shall implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches, as described under Attachment 2 (Technical and Organizational Measures) to this DPA. Notwithstanding any provision to the contrary, Supplier may modify or update the contents of Attachment 2 at its discretion provided that such modification or update does not result in a material degradation in the technical and organizational measures set forth therein.
d. Confidentiality. Supplier shall ensure that any personnel whom Supplier authorizes to Process Personal Data on its behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.
e. Personal Data Breaches. In the event that Supplier becomes aware of any Personal Data Breach, Supplier will notify Customer without undue delay, and in any case within any time period set forth in applicable Data Privacy Laws. Customer hereby agrees that Supplier may, in its discretion, provide any legally required notices of Personal Data Breaches to applicable authorities and/or affected Data Subjects, provided that Customer shall have the right to propose commercially reasonable edits to any such notices; otherwise, if Supplier defers to Customer to provide any such notices then Supplier shall provide Customer with such reasonable assistance as necessary to enable Customer to provide any such notices. Customer may, at its own effort and expense, send any notices that are not required by applicable law.
f. Deletion or Return of Personal Data. Supplier will Process Personal Data for the duration of the Agreement only, unless otherwise agreed in writing. Supplier will delete or return all Personal Data (including copies thereof) Processed pursuant to this DPA on termination or expiration of the Products in accordance with the procedures and timeframes set out in the Agreement. Notwithstanding the foregoing and subject to applicable Data Privacy Laws, Supplier may continue to retain Customer’s Personal Data for as long as necessary to comply with Supplier’s legal and regulatory obligations; to enable fraud monitoring, detection and loss prevention activities; to comply with Supplier’s tax, accounting, and financial reporting obligations; and where required by Supplier’s contractual commitments to third-parties. Any such processing that extends beyond the term of the Agreement shall be done in accordance with the terms of this DPA and any applicable Data Privacy Laws.
g. Demonstration of Compliance. Supplier shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and applicable Data Privacy Laws and shall allow for and contribute to audits, including inspections by Customer, in order to assess compliance with this DPA and applicable Data Privacy Laws. Customer acknowledges and agrees that it shall exercise its audit and inspection rights under this DPA by instructing Supplier to supply, on a confidential basis, (i) a summary copy of an independently validated report of its security programs (e.g. SOC 2, Type II Report), along with copies of any related policies and other documentation, or its hosting provider’s security programs and related policies and documentation if Supplier does not host the Personal Data itself, or (ii) if Supplier does not have such a report, written responses to all reasonable requests for information made by Customer necessary to confirm Supplier’s compliance with this DPA, along with copies of any related policies and other documentation. Customer shall not exercise this right to audit and inspect more than once per calendar year.
h. Supplier Assistance to Customer. To the extent required by applicable Data Privacy Laws, Supplier shall assist Customer with Customer’s obligations under those applicable Data Privacy Laws. Such assistance may be provided through Product functionality, in which case Customer agrees to utilize such functionality before asking Supplier for further assistance.
As part of Supplier’s obligation under Section 4(f) above, where required by applicable Data Privacy Laws, Supplier will assist Customer with Customer’s obligation to respond to requests from data protection authorities and Data Subjects that seek to exercise their rights under applicable Data Privacy Laws (“Data Subject Requests”). All Data Subject Requests must provide sufficient information for Supplier to verify the identity of the Data Subject. Customer shall reimburse Supplier for any commercially reasonable costs that arise from any such assistance that is in addition to that which Supplier normally provides to its customers.
If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to Supplier, Supplier will, to the extent that Supplier can identify Customer as the source of the Personal Data in question through its standard due diligence processes, promptly inform Customer of such Data Subject Request and will advise the Data Subject to submit their request to Customer. Customer shall otherwise be solely responsible for responding to any Data Subject Requests.
To the extent required by applicable law, Supplier will provide reasonable assistance to Customer to enable Customer to conduct and document data protection assessments, provided that the required information is reasonably available to Supplier, and Customer does not otherwise have access to the required information.
Customer agrees that Supplier may engage Sub-Processors to Process Personal Data on Customer’s behalf.
Where Supplier engages Sub-Processors, Supplier will execute a written agreement with any Sub-Processor that imposes data protection and privacy terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA and that requires the Sub-Processor to meet the obligations of the Supplier with respect to the Personal Data, to the extent applicable to the nature of the services provided by such Sub-Processors. Supplier will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause Supplier to breach any of its obligations under this DPA.
For those Customers that provide Personal Data of Data Subjects who are subject to CoPA, Customer has the right to object to the use of any particular Sub-Processor, in which case Customer may request a list of Supplier’s Sub-Processors.
Customer acknowledges and agrees that Supplier may Process Personal Data on a global basis as necessary to provide the Products in accordance with the Agreement. Supplier shall ensure such transfers are made in compliance with the requirements of applicable Data Privacy Laws.
a. Scope. This Section 9 (Additional Provisions for California Personal Information) shall apply only with respect to California Personal Information. In the event that the terms and conditions in this Section 9 conflict with those in the other sections of this DPA, the terms and conditions in this Section 9 shall take precedence.
b. Responsibilities as a Service Provider. The parties agree that when Supplier is acting as a Service Provider (see Section 2(a)) Supplier will process California Personal Information strictly for the limited purposes set forth in Attachment 1 of this DPA and as otherwise permitted by the CCPA, including the permitted purposes set forth in the ‘business purpose’ definition in Section 1798.140(e) (the “Business Purposes”)
(i) As Service Provider, Supplier shall not:
(ii) As a Service Provider, Supplier shall:
c. Responsibilities as a CCPA Third Party. The parties agree that when Supplier is acting as a CCPA Third Party (see Section 2(a)) Supplier will process California Personal Information strictly for the limited purposes set forth in Attachment 1 of this DPA, including any Business Purposes and any CCPA Third Party purposes as identified therein, and as otherwise permitted by the CCPA (the “CCPA Third Party Purposes”).
(i) As a CCPA Third Party, Supplier shall:
d. Certification. Supplier certifies that it understands and will comply with the restrictions set out in Section 9(b) (Responsibilities as a Service Provider) and Section 9(c) (Responsibilities as a CCPA Third Party).
Supplier shall comply with its obligations as a Processor under the Data Privacy Laws to keep all Personal Data secure. Without limiting the foregoing, Supplier shall: (a) 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, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to applicable Data Privacy Laws; and (b) in assessing the appropriate level of security, taking into account in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed. Such measures include (as applicable), without limitation:
A) Access Control
Outsourced Processing: Supplier Processes Customer’s Personal Data, including Personal Data that is used in conjunction with its hosted Software and Cloud Services, using industry-leading, reputable cloud infrastructure vendors. Supplier maintains contractual relationships with these infrastructure vendors which obligates them to provide their infrastructure services in accordance with standards which conform to the requirements of applicable Data Privacy Laws and that are no less restrictive than this Data Processing Agreement.
Physical and environmental security: Supplier hosts its Cloud Services in multi-tenant environments and deploys industry best practices with respect to isolating each tenant from one another. Supplier hosts its hosted Software in separate virtual environments for each Customer, each controlled in accordance with industry best practices. All of Customer’s Personal Data that is not Processed in the hosted Software or Cloud Services is Processed in a virtual environment inaccessible to Customers and controlled in accordance with industry best practices.
Authentication: Supplier has implemented strong password policies for all systems that Process Customer’s Personal Data. Customers who interact with the Products via the user interface must authenticate before accessing non-public Personal Data.
Authorization: For Cloud Services, Personal Data is stored in multi-tenant storage systems accessible to Customers via only application user interfaces and application programming interfaces, and Customers are not allowed direct access to the underlying application infrastructure. For all systems that Process Customer’s Personal Data, the authorization model in each of Supplier’s products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
Application Programming Interface (API) access: Public product APIs may be accessed using an API key or through Oauth authorization.
Access controls: Supplier implements industry standard access controls for all systems that Process Customer’s Personal Data. Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.
Intrusion detection and prevention: Supplier implements industry standard intruder detection capabilities for all systems that Process Customer’s Personal Data. Supplier has implemented a Web Application Firewall (WAF) solution to protect all internet-accessible systems that Process Customer’s Personal Data. The WAF is designed to identify and prevent attacks against publicly available network services.
Static code analysis: If identified in an applicable Order Form, security reviews of code stored in Supplier’s source code repositories are regularly performed, checking for logical errors, security flaws, and performance flaws.
Vulnerability testing: Supplier conducts regular vulnerability testing of systems that Process Customer’s Personal Data. These vulnerability tests are intended to identify and resolve foreseeable attack vectors and potential abuse scenarios.
Product access: A subset of Supplier’s employees have access to the Products and other systems that Process Customer’s Personal Data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents, and implement data security measures. Access is enabled through “just in time” requests for access, and all such requests are logged. Employees are granted access by role, and reviews of high-risk privilege grants and roles are conducted regularly.
External access to Supplier systems that Process Customer’s Personal Data is restricted, following the same least privilege model, and requires two-factor authorization and authentication. External access controls are configured and monitored by Supplier IT and Security personnel.
Background checks: All Supplier employees who access systems that Process Customer’s Personal Data undergo a background check prior to being extended an employment offer, in accordance with and as permitted by the applicable laws. All employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.
Access control to premises and facilities: In addition to the access control measures stated above in this subsection (a), the following measures apply to any system that is hosted in Supplier’s data centers (including those which are co-located):
Physical access controls to enter premises include magnetic locks and badge readers. Physical access to interior is subdivided with restricted areas requiring addition badge access privileges. Building receptionists require guest sign-in, ID check, and printed visitor badges with visitor photograph and date of visit. Visitations are logged. Video surveillance in present at office spaces and coverage is present at interior and exterior, including face-level camera at headquarters receptionist entrance. As part of annual Security Awareness Training, Supplier staff are trained in concepts of physical security and understand procedures for contacting security personnel if needed.
B) Transmission Control
In-transit: For Supplier Products that are accessible via the Internet, Supplier makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces. Supplier’s HTTPS implementation uses industry standard algorithms and certificates.
At-rest: Supplier stores user passwords following policies that follow industry standard practices for security. Supplier has implemented technologies to ensure that stored data is encrypted at rest.
C) Input Control
Detection: Supplier designed its infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregate log data and alert appropriate employees of malicious, unintended, or anomalous activities. Supplier personnel, including security, operations, and support personnel, are responsive to known incidents.
Response and tracking: Supplier maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, legal, operations, or support personnel, and appropriate resolution steps are identified and documented. For any confirmed incidents, Supplier will take appropriate steps to respond and notify Customer in accordance with the terms of this DPA.
D) Availability Control
Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99% uptime. The infrastructure providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.
Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer’s Personal Data is backed up to multiple durable data stores and replicated across multiple availability zones.
Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods. Supplier’s systems that Process Customer’s Personal Data are designed to ensure redundancy and seamless failover. The server instances that support the Products are also architected with a goal to prevent single points of failure. This design assists Supplier operations in maintaining and updating the Product applications and backend while limiting downtime.
Measures to ensure that personal data are protected from accidental destruction or loss: Supplier has business continuity, incident response, data backup, and disaster recovery procedures designed to maintain business operations and redundancy of systems that Process Customer’s Personal Data. Supplier performs regular testing to ensure that availability supporting systems function properly.
E) Certifications
Upon request of Customer, Supplier will provide either (i) a copy of any available independently validated report of its security programs (i.e. SOC 2, Type II, ISO 27001, etc.), or (ii) written responses to all reasonable requests for information, along with copies of any related policies and other documentation.