This Data Processing Addendum (“DPA”) forms part of the BackupMaster Terms of Service (“Agreement”) between the entity identified as the customer on the order form (“Customer”) and BackupMaster (“BackupMaster”), and sets out the obligations of BackupMaster regarding the processing of Customer’s Personal Data collected and held by BackupMaster in accordance with Regulation (EU) 2016/679 (General Data Protection Regulation (“GDPR”)).
The primary aim of this DPA is to set out limits for the processing of Personal Data and to ensure that those limits, as well as further data subject rights to erasure, are complied with. By extension, this DPA aims to ensure that the BackupMaster complies fully with its obligations and the rights of data subjects under the GDPR.
All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. For the avoidance of doubt, all references to the Agreement shall include this DPA, as defined herein.
“Agreement” means BackupMaster Terms of Service and other written or electronic agreements which govern the provision of the Service to Customer, as such agreements may be updated from time to time.
“Control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.
“Customer Data” means any personal data that BackupMaster processes on behalf of Customer via the Service, as more particularly described in this DPA.
“Data Protection Laws” means all data protection laws and regulations applicable to a party’s processing of Customer Data under the Agreement, including, where applicable, European Data Protection Laws and Non-European Data Protection Laws.
“European Data Protection Laws” means all data protection laws and regulations applicable to Europe, including (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”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) applicable national implementations of (i) and (ii); (iv) the GDPR as it forms part of UK law by virtue of section 3 of the UK European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018 (together, “UK Data Protection Laws”); and (v) the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (“Swiss DPA”).
“Europe” means, for the purposes of this DPA, the European Economic Area and its member states (“EEA”), Switzerland, and the United Kingdom (“UK”).
“Non-European Data Protection Laws” means the California Consumer Privacy Act (“CCPA”); the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); the Brazilian General Data Protection Law (“LGPD”), Federal Law no. 13,709/2018; and the Privacy Act 1988 (Cth) of Australia, as amended (“Australian Privacy Law”).
“Order Form” means the user interface through which Customer purchases a subscription to Service or enables access to Service, as it is described in BackupMaster Terms of Service.
“Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“SCCs” means (i) the standard contractual clauses between controllers and processors adopted by the European Commission in its Implementing Decision (EU) 2021/91 of 4 June 2021 and currently located here (the “2021 Controller-to-Processor Clauses”); or (ii) the standard contractual clauses between processors adopted by the European Commission in its Implementing Decision (EU) 2021/91 of 4 June 2021, and currently located here (the “2021 Processor-to-Processor Clauses”); as applicable in accordance with Section 6.3.
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of, or access to, Customer Data on systems managed or otherwise controlled by BackupMaster.
“Service” means BackupMaster online service for backup, and restoration of Customer Data, as it is described in BackupMaster Terms of Service.
“Sub-processor” means any processor engaged by BackupMaster to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or this DPA. Sub-processors may include third parties but shall exclude BackupMaster’s employees, contractors, or consultants.
“UK Addendum” means the International Data Transfer Addendum (version B1.0) issued by Information Commisioners Office under S.119(A) of the UK Data Protection Act 2018, as updated or amended from time to time.
The terms “controller”, “data subject”, “processor”, and “processing” shall have the meaning given to them under applicable Data Protection Laws or, if not defined thereunder, the GDPR, and “process”, “processes”, and “processed”, with respect to any Customer Data, shall be interpreted accordingly.
2. Roles and Responsibilities
2.1 Parties’ roles. If European Data Protection Laws or the LGPD applies to either party’s processing of Customer Data, the parties acknowledge and agree that with regard to the processing of Customer Data, BackupMaster is a processor acting on behalf of Customer (whether itself a controller or a processor). For the avoidance of doubt, this DPA shall not apply to instances where BackupMaster is the controller (as defined by European Data Protection Laws).
2.2 Purpose limitation. BackupMaster shall process Customer Data, as further described in Annex A (Details of Data Processing) of this DPA, only in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing (“Permitted Purposes”). The parties agree that the Agreement, including this DPA, along with the Customer’s configuration of Service, constitute the Customer’s complete and final instructions to BackupMaster in relation to the processing of Customer Data (including for the purposes of the SCCs) and processing outside the scope of these instructions (if any) shall require a prior written agreement between the parties.
2.3 Customer compliance. Customer represents and warrants that (i) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Customer Data and any processing instructions it issues to BackupMaster; and (ii) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for BackupMaster to process Customer Data for the purposes described in the Agreement. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data. Without prejudice to the generality of the foregoing, Customer agrees that it shall be responsible for complying with all laws (including Data Protection Laws) applicable to any content uploaded, saved, or managed through the Service.
2.4 Lawfulness of Customer’s instructions. Customer will ensure that BackupMaster’s processing of the Customer Data in accordance with Customer’s instructions will not cause BackupMaster to violate any applicable law, regulation, or rule, including, without limitation, Data Protection Laws. BackupMaster shall promptly notify Customer unless prohibited from doing so under European Data Protection Laws if it becomes aware or believes that any data processing instruction from Customer violates European Data Protection Laws. Where Customer acts as a processor on behalf of a third-party controller (or other intermediary to the ultimate controller), Customer warrants that its processing instructions as set out in the Agreement and this DPA, including its authorizations to BackupMaster for the appointment of Sub-processors in accordance with this DPA, have been authorized by the relevant controller. Customer shall serve as the sole point of contact for BackupMaster, and BackupMaster need not interact directly with (including to provide notifications to or seek authorization from) any third-party controller other than through the regular provision of the Service to the extent required under the Agreement. Customer shall be responsible for forwarding any notifications received under this DPA to the relevant controller, where appropriate.
3.1 Authorized Sub-processors. Customer agrees that BackupMaster may engage Sub-processors to process Customer Data on Customer’s behalf. The Sub-processors currently engaged by BackupMaster and authorized by Customer are available here. BackupMaster shall notify Customer if it adds or removes Sub-processors at least 10 days prior to any such changes by email or in-app notification. If Customer wants to receive emails about updating the Sub-Processor list, Customer shall notify BackupMaster via email at email@example.com to add Customer to the subscribers’ list.
3.2 Sub-processor obligations. BackupMaster shall: (i) enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Customer Data as those in this DPA, to the extent applicable to the nature of the service provided by such Sub-processor; and (ii) remain responsible for such Sub-processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-processor that cause BackupMaster to breach any of its obligations under this DPA. Customer acknowledges and agrees that, where applicable, BackupMaster fulfills its obligations under Clause 9 of the 2021 Controller-to-Processor Clauses and 2021 Processor-to-Processor Clauses (as applicable) by complying with this Section 3 and that BackupMaster may be prevented from disclosing Sub-processor agreements to Customer due to confidentiality restrictions but BackupMaster shall, upon request, use reasonable efforts to provide Customer with all relevant information it reasonably can in connection with Sub-processor agreements.
4.1 Security Policy. BackupMaster shall implement and maintain appropriate technical and organizational security measures that are designed to protect Customer Data from Security Incidents and designed to preserve the security and confidentiality of Customer Data in accordance with BackupMaster’s security standards described in Annex B (“Security Policy”) of this DPA.
4.2 Confidentiality of processing. BackupMaster shall ensure that any person who is authorized by BackupMaster to process Customer Data (including its staff and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.3 Updates to Security Policy. Customer is responsible for reviewing the information made available by BackupMaster relating to data security and making an independent determination as to whether the Service meets Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the security mesures are subject to technical progress and development and that BackupMaster may update or modify the Security Policy from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Service provided to Customer.
4.4 Security Incident Response. If BackupMaster becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data or Personal Data while processed by BackupMaster (each a “Security Incident”), BackupMaster shall (i) notify Customer without undue delay, and where feasible, within 72 hours of awareness; (ii) investigate the Security Incident and provide Customer with detailed information about the Security Incident; (iii) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident. Notification(s) of Security Incidents will be delivered to the Customer by any means BackupMaster selects, including via email. It is the Customer’s sole responsibility to ensure the Customer maintains accurate contact information with BackupMaster. Customer is solely responsible for complying with its obligations under incident notification laws applicable to Customer and fulfilling any third-party notification obligations related to any Security Incident. BackupMaster shall make reasonable efforts to assist Customer in fulfilling Customer’s obligation under GDPR Article 33 or other applicable laws or regulations to notify the relevant supervisory authority and data subjects about such Security Incident. BackupMaster’s notification of or response to a Security Incident under this Section 4.4 shall not be construed as an acknowledgment by BackupMaster of any fault or liability with respect to the Security Incident.
4.5 Customer responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Service, including preventing unauthorized access by third-parties to Service, protecting the security of Customer Data when in transit to and from the Service, and taking any appropriate steps to secure its computing environment, programs, files, and data stored on it. The Customer must notify BackupMaster promptly about any possible misuse of its accounts or authentication credentials or any Security Incident related to Service.
5. Security Audits
5.1 Audit rights. BackupMaster shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by Customer in order to assess compliance with this DPA. Customer acknowledges and agrees that it shall exercise its audit rights under this DPA (including this Section 5.1 and, where applicable, the SCCs) and any audit rights granted by Data Protection Laws, by instructing BackupMaster to comply with the audit measures described in Section 5.2 below.
5.2 Security due diligence. BackupMaster shall respond to all reasonable requests for information made by Customer to confirm BackupMaster’s compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, by making additional information available regarding its information security program upon Customer’s written request to firstname.lastname@example.org, provided that Customer shall not exercise this right more than once per calendar year.
6. International Transfers
6.1 Data center locations. Customer acknowledges that BackupMaster transfer and process Customer Data to and in the United States. BackupMaster shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws and this DPA.
6.2 Australian data. To the extent that BackupMaster is a recipient of Customer Data protected by the Australian Privacy Law, the parties acknowledge and agree that BackupMaster may transfer such Customer Data outside of Australia as permitted by the terms agreed upon by the parties and subject to BackupMaster complying with this DPA and the Australian Privacy Law.
6.3 EEA Data Transfers. To the extent that BackupMaster is a recipient of Customer Data protected by GDPR in a country outside of EEA that is not recognized as providing an adequate level of protection for personal data (as described in applicable European Data Protection Laws), the parties agree to abide by and process such Customer Data in compliance with the SCCs, which shall be incorporated into and form an integral part of this DPA.
6.4 UK Data Transfers. With respect to transfers to which the UK Data Protection Laws apply, the SCCs shall apply and shall be deemed amended as specified by the UK Addendum. The UK Addendum shall be deemed executed by the parties and incorporated into and form an integral part of this DPA. In addition: Tables 1 to 3 in Part 1 of the UK Addendum shall be deemed completed with the information set out in Annexes I and II of the relevant SCCs, and Table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting “neither party”.
6.5 Swiss Data Transfers. With respect to transfers to which the Swiss DPA apply, the SCCs shall apply in accordance with Section 6.3 with the following modifications: (i) references to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss DPA; (ii) references to specific Articles of “Regulation (EU) 2016/679″ shall be replaced with the equivalent article or section of the Swiss DPA; (iii) references to “EU”, “Union” and “Member State law” shall be replaced with “Switzerland”; (iv) Clause 13(a) and Part C of Annex Il shall be deleted; (v) references to the “competent supervisory authority” and “competent courts” shall be replaced with “the Swiss Federal Data Protection and Information Commissioner” and “relevant courts in Switzerland”; (vi) Clause 17 shall be replaced to state “The Clauses are governed by the laws of Switzerland”; and (vii) Clause 18 shall be replaced to state “Any dispute arising from these Clauses shall be resolved by the applicable courts of Switzerland. The parties agree to submit themselves to the jurisdiction of such courts”.
6.6 Compliance with the SCCs. The parties agree that if BackupMaster cannot ensure compliance with the SCCs, it shall promptly inform Customer of its inability to comply. If Customer intends to suspend the transfer of European Data and/or terminate the affected parts of the Service, it shall first provide notice to BackupMaster and provide BackupMaster with a reasonable period of time to cure such non-compliance, during which time BackupMaster and Customer shall reasonably cooperate to agree what additional safeguards or measures, if any, may be reasonably required. Customer shall only be entitled to suspend the transfer of data and/or terminate the affected parts of the Service for non-compliance with the SCCs if BackupMaster has not or cannot cure the non-compliance within a reasonable period.
6.7 Alternative transfer mechanism. To the extent BackupMaster adopts an alternative lawful data transfer mechanism for the transfer of European Data not described in this DPA (“Alternative Transfer Mechanism”), the Alternative Transfer Mechanism shall apply instead of the transfer mechanisms described in this DPA (but only to the extent such Alternative Transfer Mechanism complies with applicable European Data Protection Laws and extends to the countries to which European Data is transferred). In addition, if and to the extent that a court of competent jurisdiction or supervisory authority orders (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer European Data (within the meaning of applicable European Data Protection Laws), BackupMaster may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of European Data.
7. Deletion of Data
7.1 Deletion on termination. Upon termination or expiration of the Agreement, BackupMaster shall delete all Customer Data (including copies) in its possession or control within 30 business days, except that this requirement shall not apply to the extent BackupMaster is required by the applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on backup systems, which Customer Data BackupMaster shall securely isolate, protect from any further processing and eventually delete in accordance with BackupMaster’s standard deletion policy, as it is described in Agreement, except to the extent required by applicable law. The parties agree that the certification of deletion of Customer Data described in Clause 8.5 and 16(d) of the 2021 Controller-to-Processor Clauses and 2021 Processor-to-Processor Clauses (as applicable) shall be provided by BackupMaster to Customer only upon Customer’s written request.
8. Data Subject Rights and Cooperation
8.1 Data subject requests. In case of requests from data subjects regarding its Personal Data, BackupMaster shall, considering the nature of the Customer Data processing, provide reasonable additional assistance to Customer to the extent possible to enable Customer to comply with its data protection obligations with respect to data subject rights under Data Protection Laws. In the event that any such request is made to BackupMaster directly, BackupMaster shall not respond to such communication directly except as appropriate (for example, to direct the data subject to contact Customer) or legally required without Customer’s prior authorization. If BackupMaster is required to respond to such a request, BackupMaster shall, where the Customer is identified or identifiable from the request, promptly notify Customer and provide Customer with a copy of the request unless BackupMaster is legally prohibited from doing so. For the avoidance of doubt, nothing in the Agreement (including this DPA) shall restrict or prevent BackupMaster from responding to any data subject or data protection authority requests in relation to Personal Data for which BackupMaster is a controller.
8.2 Data protection impact assessment. To the extent required under applicable Data Protection Laws, BackupMaster shall (considering the nature of the processing and the information available to BackupMaster) provide all reasonably requested information regarding the Service to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws. BackupMaster shall comply with the foregoing by: (i) providing the information contained in the Agreement, including this DPA; and (ii) if the foregoing sub-section (i) is insufficient for Customer to comply with such obligations upon request, providing additional reasonable assistance (at Customer’s expense).
9. Limitation of Liability
9.1 Each party’s liability taken together in the aggregate arising out of or related to this DPA (including the SCCs) shall be subject to the exclusions and limitations of liability set forth in the Agreement.
9.2 BackupMaster shall be liable for Security Incident (howsoever arising, whether in contract, tort (including negligence), or overwise) under or in connection with this DPA: only to the extent caused by the processing of Personal Data under this DPA and directly resulting from the breach of security: in no circumstances to the extent that any Security Incident (or the circumstances giving rise to it) is contributed to or caused by any breach of DPA by Customer.
9.3 Any claims made against BackupMaster under or in connection with this DPA (including, where applicable, the SCCs) shall be brought solely by the Customer entity that is a party to the Agreement.
9.4 In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise.
10. Relationship with the Agreement
10.1 This DPA shall remain in effect for as long as BackupMaster carries out Customer Data processing operations on behalf of Customer or until termination of the Agreement (and all Customer Data has been returned or deleted in accordance with Section 7.1 above).
10.2 The parties agree that this DPA shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service.
10.3 In the event of any conflict or inconsistency between this DPA and Agreement, the provisions of the following documents (in order of precedence) shall prevail: (i) SCCs; then (ii) this DPA, and then (iii) Agreement.
10.4 Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.
10.5 No one other than a party to this DPA, its successors, and permitted assignees shall have any right to enforce any of its terms.
10.6 This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
Annex A – Details of Data Processing
Categories of data subjects. The categories of data subjects whose personal data is processed by BackupMaster include the Customer’s representatives, including employees, contractors, collaborators, and customers of the Customer. BackupMaster acknowledges that depending on Customer’s use of Service, Customer may elect to include personal data from any of the following types of data subjects in the personal data:
Employees, contractors, and temporary workers (current, former, prospective) of Customer;
Customer’s collaborators/contact persons (natural persons) or employees, contractors or temporary workers of legal entity collaborators/contact persons (current, prospective, former);
Users (e.g., customers, clients, visitors, etc.) and other data subjects that are users of Customer’s services.
Categories of Personal Data. The personal data that is included in e-mail, documents, and other data in an electronic form in the context of Service. BackupMaster acknowledges that, depending on Customer’s use of Service, Customer may elect to include personal data from any of the following categories in the personal data:
Customer’s customers’ first name, last name, phone number, email address, shipping and billing address, customer order information, purchase history, products purchased, store credit, tags, and notes.
Customer’s employees’ first name, last name, and employment details such as job title, telephone number, business address, and email address.
Any other Personal Data submitted by, sent to, or received by Customer, its customers, and/or its Cloud Service Provider, via BackupMaster’s Service and identified in Article 4 of the GDPR.
The frequency of Processing. Continuous depending upon the use of Service by the Customer. Subject matter and nature of Processing. Personal Data will be Processed in accordance with this DPA and
BackupMaster Terms of Service and may be subject to the following Processing activities:
The creation of copies of Customer Data for storage and backup purposes;
Enabling Customer to restore such copies of such Customer Data at the Customer’s discretion;
As necessary to provide access to BackupMaster’s Service as set out in the DPA and BackupMaster Terms of Service and an applicable Order Form(s) and otherwise in accordance with Instructions from the Customer, Providing Customer with informational and technical support, the BackupMaster app updates, promotional offers, and other information about the BackupMaster services, and The disclosure in accordance with the DPA and BackupMaster Terms of Service and/or as compelled by applicable laws.
Purpose(s) of Data Processing. BackupMaster will Process Personal Data as necessary to provide access to BackupMaster’s Service pursuant to this DPA and BackupMaster Terms of Service, as further specified in an applicable Order Form(s), and as further instructed by Customer in its use of Service.
The period for which the Personal Data will be retained. BackupMaster will Process Personal Data in accordance with the duration specified in Section 7 of this DPA (Deletion of Data) and BackupMaster Terms of Service unless otherwise agreed in writing.
Transfers to Sub-processors. Sub-processors will Process Personal Data as necessary to provide access to BackupMaster’s Service pursuant to this DPA and BackupMaster Terms of Service and as further instructed by Customer. Sub-processors will Process Personal Data for the duration of the DPA unless otherwise agreed in writing.
Annex B – Security Policy
In addition to the information provided elsewhere in Addendum, the Parties wish to document the following information in relation to the data security activities.
The Security Policy applicable to the Service is described here (as updated from time to time in accordance with Section 4.3 of this DPA).