Last updated: July 31, 2020
This Data Processing Agreement (“DPA”) is an addendum to the Customer Terms of Service (“Agreement”) between DigitalOcean, LLC (“DigitalOcean”) and the Customer. This DPA includes and incorporates by reference the annexes and addenda referenced at the bottom of this document. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Customer enters into this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the name and on behalf of its Authorized Affiliates (defined below).
The parties agree as follows:
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
“Authorized Affiliate” means any of Customer Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.
“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.
“Controller” means an entity that determines the purposes and means of the processing of Personal Data.
“Customer Data” means any data that DigitalOcean and/or its Affiliates processes on behalf of Customer in the course of providing the Services under the Agreement.
“Data Protection Laws” means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
“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”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).
“Personal Data” means any Customer Data relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Law.
“Privacy Shield” means the EU-US and Swiss-US Privacy Shield Frameworks, as administered by the U.S. Department of Commerce.
“Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision of 12 July 2016 pursuant to the Directive, details of which can be found at www.privacyshield.gov/eu-us-framework.
“Processor” means an entity that processes Personal Data on behalf of the Controller.
“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly.
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.
“Services” means any product or service provided by DigitalOcean to Customer pursuant to and as more particularly described in the Agreement.
“Standard Contractual Clauses” means the standard contractual clauses issued pursuant to the European Commission Decision of February 5, 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
“Sub-processor” means any Processor engaged by DigitalOcean or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any DigitalOcean Affiliate.
2.1 This DPA applies where and only to the extent that DigitalOcean processes Personal Data on behalf of the Customer in the course of providing the Services and such Personal Data is subject to Data Protection Laws of the State of California, the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.
2.2 Role of the Parties. As between DigitalOcean and Customer, Customer is the Controller of Personal Data and DigitalOcean shall process Personal Data only as a Processor on behalf of Customer. Nothing in the Agreement or this DPA shall prevent DigitalOcean from using or sharing any data that DigitalOcean would otherwise collect and process independently of Customer's use of the Services.
2.3 Customer Obligations. Customer agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to DigitalOcean; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for DigitalOcean to process Personal Data and provide the Services pursuant to the Agreement and this DPA.
2.4 DigitalOcean Processing of Personal Data. As a Processor, DigitalOcean shall process Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; and (iii) to comply with other reasonable instructions provided by Customer to the extent they are consistent with the terms of this Agreement and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to DigitalOcean in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and DigitalOcean.
2.5 Nature of the Data. DigitalOcean handles Customer Data provided by Customer. Such Customer Data may contain special categories of data depending on how the Services are used by Customer. The Customer Data may be subject to the following process activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to Customer; (ii) to provide customer and technical support to Customer; and (iii) disclosures as required by law or otherwise set forth in the Agreement.
2.6 DigitalOcean Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that DigitalOcean shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered personal data under Data Protection Laws, DigitalOcean shall process such data in compliance with Data Protection Laws.
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