Data Processing Agreement
This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between You and Us. You and Us are hereinafter referred to individually as a “Party” and collectively as the “Parties”). You are required to read this DPA carefully as this DPA forms an integral part of the Terms of Service available at https://nektar.ai/terms-and-conditions/ (the “Terms”) and is applicable where We are the Processors of Your Personal Data forming part of the Customer Data.
Terms not specifically defined herein shall have the meaning ascribed thereto in the Terms.
In this DPA, the following terms shall have the following meanings:
“CCPA” shall mean the California Consumer Privacy Act of 2018.
“CPRA” shall mean the California Privacy Rights Act of 2020.
“Data Protection Laws” shall mean the data protection laws of the country in which You are established and any data protection laws applicable to You in connection with the Terms, including but not limited to (a) laws and regulations applicable to the GDPR, (b) in respect
of the UK, the GDPR as saved into United Kingdom by virtue of section 3 of the United Kingdom European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act, 2019 (together, “UK Data Protection Laws”) (c) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”) (d) in respect of Consumers of California the CCPA and CPRA; in each case, as may be amended, superseded or replaced.
“GDPR” shall mean the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of personal data and on the free movement of such data and repealing Directive 95/46/EC
(General Data Protection Regulation).
“Personal Data” shall mean any information relating to an identified or identifiable natural
person as defined by the General Data Protection Regulation of the European Union
(“GDPR” EC-2016/679) that is Processed by the Processor as part of providing the services
“Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.
“Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914 (“EUSCCs”); (ii) where the UK GDPR applies, the applicable standard data protection clauses
adopted pursuant to Article 46(2)(c), or (d) of the UK GDPR (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or
recognized by the Swiss Federal Data Protection and Information Commissioner (the “Swiss
SCCs”) (in each case, as updated, amended or superseded from time to time).
“Sensitive Personal Information” means information that relates to an individual’s racial
or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person’s sex life or sexual orientation. It also includes information about an individual’s criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws “Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process” shall have the meaning given to them in the GDPR.
2. Scope and Responsibilities
3. Term and Termination
4. Processing Instructions
5. Processor Personnel
We will restrict Our personnel from Processing Personal Data without authorization. We will
impose appropriate contractual obligations upon Our personnel, including relevant
obligations regarding confidentiality, data protection and data security.
6. Disclosure to Third Parties; Data Subjects Rights
7. Technical and Organizational Measures
We shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and to protect Personal Data against a Personal Data Breach (“TOMs”). Such measures shall include the measures set out in Schedule B.
8. Assistance with Data Protection Impact Assessment
9. Information Rights and Audit
10. Personal Data Breach Notification
In respect of any Personal Data Breach (actual or reasonably suspected), We shall:
12. International Data Transfers
a. In relation to transfers of Personal Data originating from the EEA and subject to the EU GDPR, the SCCs shall apply, completed as follows:
i. Module 2 (Controller to Processor) shall apply where You are a Controller
and We are a Processor. Module 3 (Processor to Processor) shall apply where You are a Processor and We are a sub-processor;
ii. in Clause 7, the optional docking clause will apply;
iii. in Clause 11, the optional language will not apply;
iv. in Clause 17, Option 1 will apply, and the EU SCCs will be governed by Irish law;
v. in Clause 18(b), disputes shall be resolved before the courts of Ireland;
vi. Annex I of the EU SCCs shall be deemed completed with the information set out in Schedule A to this Agreement; and
vii. Annex II of the EU SCCs shall be deemed completed with the information set out in Schedule B to this Agreement;
b. In relation to transfers of Personal Data originating from the UK or Switzerland and subject to the UK GDPR or Swiss DPA, the EU SCCs as implemented under sub-paragraph (a) above will apply with the following modifications:
i. references to Regulation (EU) 2016/679; shall be interpreted as references to UK Privacy Laws or the Swiss DPA (as applicable);
ii. references to specific Articles of Regulation (EU) 2016/679; shall be replaced with the equivalent article or section of UK Data Privacy Laws or the Swiss DPA (as applicable);
iii. references to “EU”, “Union”, “Member State”, and “Member State law” shall be replaced with references to “UK”, “Switzerland”, “UK law”; or “Swiss law” (as applicable);
iv. the term “member state” shall not be interpreted in such a way as to exclude data subjects in the UK or Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., the UK or Switzerland);
v. Clause 13(a) and Part C of Annex I are not used and the “competent supervisory” is the UK Information Commissioner or Swiss Federal Data Protection Information Commissioner (as applicable);
vi. references to the “competent supervisory authority” and “competent courts”
shall be replaced with references to the “Information Commissioner” and
the “courts of England and Wales” or the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland” (as
vii. in Clause 17, the Standard Contractual Clauses shall be governed by the laws of England and Wales or Switzerland (as applicable); and
viii.with respect to transfers to which UK Privacy Laws apply, Clause 18 shall be amended to state “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may bring legal proceeding against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts”, and with respect to transfers to which the Swiss DPA applies, Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
c. To the extent that and for so long as the EU SCCs as implemented in accordance with sub-paragraph (a) and (b) above cannot be used to lawfully transfer Personal Data in accordance with the UK GDPR to the Data Importer, the UK SCCs shall be incorporated into and form an integral part of this Agreement and shall apply to transfers governed by the UK GDPR. For the purposes of the UK SCCs, the relevant annexes, appendices or tables shall be deemed populated with the information set out in Schedules A and B of this Agreement.
13. Deletion or Return of Personal Data
Upon termination of Your Account, We may delete all Customer Data, including Personal
Data in accordance with the procedure set forth in the Terms. This requirement shall not
apply to the extent that We are permitted by applicable law to retain some or all of the
Personal Data, in which event We shall isolate and protect the Personal Data from any
The following Schedules form an integral part of this DPA:
A. LIST OF PARTIES UNDER THE SCCS
The Data Exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms.
Signature & Date: By entering into the Agreement, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
[Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
Name: Nektar.ai Pte. Ltd.
Address: 138 Cecil Street #12-01A Cecil Court Singapore 069538
Contact person’s name, position and contact details
Name: Aravind Ravi Sulekha
Contact: [email protected]
Activities relevant to the data transferred under these Clauses: As specified under Part B. Signature & Date: By entering into the Agreement, Data Importer is deemed to have
signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, business partners, customers or other individuals having Personal Data stored, transmitted to, made available to, accessed or otherwise processed by the data importer.
Categories of personal data transferred
The transferred Personal Data concerns the following categories of data:
The data exporter determines the categories of Personal Data which could be transferred per the Service(s) as stated in the Terms of Service. Such categories may include the following categories of data: name, phone numbers, e-mail address, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data transferred by authorized personnel.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staf having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
No sensitive data transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information to the data importer for processing.
The frequency of the transfer (e.g., whether the data is transferred on a one-of or continuous basis)
Personal Data is transferred on a continuous basis
Nature of the processing
Collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means).
Purpose(s) of the data transfer and further processing Personal Data is transferred in the course of access and use by the data exporter of the Service(s) so that the data importer may provide, support, maintain and improve the Service(s).
The data importer may further transfer Personal Data to third-party service providers that host and maintain the applications, backup, storage, payment processing, analytics and other services as specified in the section on sub-processors below. These third-party service providers may have access to or Process Personal Data for the purpose of providing these services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period Upon termination of the data exporter’s account, the data importer will delete all Personal Data in accordance with clause 13 of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the
|Name of the Sub-processor||Subject Matter||Nature||Duration|
|AWS||Cloud service provider||Storage &|
C. COMPETENT SUPERVISORY AUTHORITY
In respect of the SCCs:
Module 2: Transfer Controller to Processor
Where You are the data exporter, the supervisory authority shall be the competent supervisory
authority that has supervision over You in accordance with Clause 13 of the SCCs
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND
ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The technical and organisational measures must be described in specific (and not generic) terms and need to clearly indicate which measures apply to each transfer/set of transfers.
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Measures of encryption of personal data
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a technical incident
Processes for regularly testing, assessing and evaluating the ef ectiveness of technical and organisational measures in order to ensure the security of the processing
Measures for user identification and authorisation
Measures for the protection of data during transmission
Measures for the protection of data during storage
Measures for ensuring events logging
Measures for ensuring system configuration, including default configuration
Measures for internal IT and IT security governance and management
Measures for certification/assurance of processes and products
Measures for ensuring data quality
Measures for ensuring limited data retention
Measures for ensuring accountability
Measures for allowing data portability and ensuring erasure]
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter
LIST OF SUB-PROCESSORS
As specified in Schedule A.C.