This Customer Data Processing Agreement reflects the requirements of the European Data Protection Regulation (“GDPR”) as it comes into effect on May 25, 2018. APPLIKU´s products and services offered in the European Union are GDPR ready and this DPA provides you with the necessary documentation of this readiness.
This Data Processing Agreement (“DPA”) is an addendum to the Customer Terms of Service (“Agreement”) between APPLIKU DOO NOVI SAD (“APPLIKU”) and the Customer. 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 APPLIKU 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) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after May 25, 2018, 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in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).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 APPLIKU to Customer pursuant to and as more particularly described in the Agreement.
“Sub-processor” means any Processor engaged by APPLIKU 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 APPLIKU Affiliate.
2. Scope and Applicability of this DPA
2.1 This DPA applies where and only to the extent that APPLIKU 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 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 APPLIKU and Customer, Customer is the Controller of Personal Data and APPLIKU shall process Personal Data only as a Processor on behalf of Customer. Nothing in the Agreement or this DPA shall prevent APPLIKU from using or sharing any data that APPLIKU 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 APPLIKU; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for APPLIKU to process Personal Data and provide the Services pursuant to the Agreement and this DPA.
2.4 APPLIKU Processing of Personal Data. As a Processor, APPLIKU 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 APPLIKU 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 APPLIKU.
2.5 Nature of the Data. APPLIKU 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 APPLIKU Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that APPLIKU 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, APPLIKU is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.
3.1 Authorized Sub-processors. Customer agrees that APPLIKU may engage Sub-processors to process Personal Data on Customer's behalf.
3.2 Sub-processor Obligations. APPLIKU shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause APPLIKU to breach any of its obligations under this DPA.
3.3 Changes to Sub-processors. APPLIKU shall provide Customer reasonable advance notice (for which email shall suffice) if it adds or removes Sub-processors.
3.4 Objection to Sub-processors. Customer may object in writing to APPLIKU’s appointment of a new Sub-processor on reasonable grounds relating to data protection by notifying APPLIKU promptly in writing within five (5) calendar days of receipt of APPLIKU’s notice in accordance with Section 3.3. Such notice shall explain the reasonable grounds for the objection. In such event, the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If this is not possible, either party may terminate the applicable Services that cannot be provided by APPLIKU without the use of the objected-to-new Sub-processor.
F4.1 Security Measures. APPLIKU shall implement and maintain appropriate technical and organizational security measures to protect Personal Data from Security Incidents and to preserve the security and confidentiality of the Personal Data, in accordance with APPLIKU’s security standard.
4.2 Confidentiality of Processing. APPLIKU shall ensure that any person who is authorized by APPLIKU to process Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.3 Security Incident Response. Upon becoming aware of a Security Incident, APPLIKU shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
4.4 Updates to Security Measures. Customer acknowledges that the Security Measures are subject to technical progress and development and that APPLIKU may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
5. Security Reports and Audits
5.1 APPLIKU shall maintain records of its security standards. Upon Customer's written request, APPLIKU shall provide (on a confidential basis) copies of relevant external ISMS certifications, audit report summaries and/or other documentation reasonably required by Customer to verify APPLIKU’s compliance with this DPA. APPLIKU shall further provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires, that Customer (acting reasonably) considers necessary to confirm APPLIKU’s compliance with this DPA, provided that Customer shall not exercise this right more than once per year.
6. International Transfers
6.1 Processing Locations. APPLIKU stores and processes EU Data (defined below) in data centres located inside and outside the European Union. All other Customer Data may be transferred and processed in the United States and anywhere in the world where Customer, its Affiliates and/or its Sub-processors maintain data processing operations. APPLIKU shall implement appropriate safeguards to protect the Personal Data, wherever it is processed, in accordance with the requirements of Data Protection Laws.
6.2 Transfer Mechanism: Notwithstanding Section 6.1, to the extent APPLIKU processes or transfers (directly or via onward transfer) Personal Data under this DPA from the European Union, the European Economic Area and/or their member states and Switzerland (“EU Data”) in or to countries which do not ensure an adequate level of data protection within the meaning of applicable Data Protection Laws of the foregoing territories, the parties agree that APPLIKU shall be deemed to provide appropriate safeguards for such data by virtue of having certified its compliance with the Privacy Shield and APPLIKU shall process such data in compliance with the Privacy Shield Principles. Customer hereby authorises any transfer of EU Data to, or access to EU Data from, such destinations outside the EU subject to any of these measures having been taken.
7. Return or Deletion of Data
7.1 Upon deactivation of the Services, all Personal Data shall be deleted, save that this requirement shall not apply to the extent APPLIKU is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which such Personal Data APPLIKU shall securely isolate and protect from any further processing, except to the extent required by applicable law.
8.1 To the extent that Customer is unable to independently access the relevant Personal Data within the Services, APPLIKU shall (at Customer's expense) taking into account the nature of the processing, provide reasonable cooperation to assist Customer by appropriate technical and organizational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to APPLIKU, APPLIKU shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If APPLIKU is required to respond to such a request, APPLIKU shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
8.2 To the extent APPLIKU is required under Data Protection Law, APPLIKU shall (at Customer's expense) provide reasonably requested information regarding APPLIKU’s processing of Personal Data under the Agreement to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
9.1 Generally. You acknowledge and agree that we may, at our sole and absolute discretion, suspend you or your End Users from accessing or using any or all of the APPLIKU Services, with or without notice, if we determine: : you or your End User's continued access or use of the APPLIKU Services may:
- Result in an actual or possible tort or fraud
- Expose us or any relevant third party determined by us to an actual or a risk of loss or liability, or
- Adversely impact us or any relevant third party determined by us in any way; you are delinquent on your payment obligations for more than ten (10) days; or you or your End User is in breach of this Agreement.
- Effect. Our right to suspend you or your End Users is in addition to our right to terminate this Agreement. If we suspend you or your End Users from accessing or using any or all of the APPLIKU Services: You and your End Users shall be obligated and bound to this Agreement until this Agreement is terminated, You shall remain responsible for all fees and charges incurred during any period of suspension.
- And you shall not be entitled to any payment credits for any period of suspension. Termination.
9.2 Generally. We may terminate this Agreement, with or without cause, upon providing you with three (3) days advance notice. You may terminate this Agreement at your convenience and for any reason by closing out your account and providing us with notice in accordance with Section 13 hereof, which shall be deemed effective upon written confirmation from us that we received your notice.
10. Effect. Upon termination of this Agreement
All your rights and your End Users' rights under this Agreement terminate immediately, We shall not be responsible for the storage, backup or maintenance of any of your Customer Data, which may result in the permanent deletion or removal of all your Customer Data.
You shall remain responsible for all fees and charges incurred through the date of termination, which may including termination fees and charges, and The terms of this Section 7.2 shall survive and continue to apply after termination.
11. Limitation of Liability
To the furthest extent of the law, you acknowledge and agree to assume full responsibility for any loss that results from the use of the APPLIKU Services and APPLIKU Resources including without limitation, technical support, and any services related to hardware and software support and/or maintenance other than a loss that results directly from our reckless or intentional malfeasance or misfeasance.
EXCEPT IN INSTANCES WHERE LOSSES ARE DIRECTLY THE RESULT OF OUR RECKLESS OR INTENTIONAL MALFEASANCE OR MISFEASANCE, WE, OUR AFFILIATES AND OUR SUBPROCESSORS SHALL NOT BE LIABLE TO YOU OR YOUR END USERS FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF WE, OUR AFFILIATES AND/OR OUR SUBPROCESSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR HARMS. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR SUBPROCESSORS SHALL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, RESTITUTION, DAMAGES, LOSSES OR HARMS ARISING IN CONNECTION WITH: (I) YOUR INABILITY TO USE THE APPLIKU SERVICES, INCLUDING AS A RESULT OF ANY (A) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE APPLIKU SERVICES, (B) OUR DISCONTINUATION OF ANY OR ALL OF THE APPLIKU SERVICES OR (C) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE APPLIKU SERVICES FOR ANY REASON; (II) YOUR COST OF SUBSTITUTE GOODS OR SERVICES; (III) ANY EXPENSES, COVENANTS OR COMMITMENTS MADE BY YOU OR YOUR END USERS IN CONNECTION WITH THIS AGREEMENT OR THE APPLIKU SERVICES; OR (IV) ANY UNAUTHORIZED ACCESS, MAINTENANCE OR TRANSMISSION RESULTING IN THE ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE WITH RESPECT TO CUSTOMER DATA OR THE APPLIKU SERVICES. IN ANY CASE, THE AGGREGATE LIABILITY OF US AND OUR AFFILIATES AND SUBPROCESSORS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS YOU HAVE ACTUALLY PAID US UNDER THIS AGREEMENT FOR THE APPLIKU SERVICES THAT GAVE RISE TO THE DISPUTE, CONTROVERSY, CLAIM OR ACTION.
APPLIKU DOO NOVI SAD Name: KRISTINA SGIBNEVA Title: Director/CEO