This Customer Data Processing Agreement reflects the requirements of the European Data
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
not defined in this DPA shall have the meanings set forth in the Agreement. Customer enters
this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the
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
common Control with an entity.
“Authorized Affiliate” means any of Customer Affiliate(s) permitted to or otherwise receiving
benefit of the Services pursuant to the Agreement.
“Control” means an ownership, voting or similar interest representing fifty percent (50%) or
of the total interests then outstanding of the entity in question. The term “Controlled”
be construed accordingly.
“Controller” means an entity that determines the purposes and means of the processing of
“Customer Data” means any data that APPLIKU and/or its Affiliates processes on behalf of
in the course of providing the Services under the Agreement.
“Data Protection Laws” means all data protection and privacy laws and regulations applicable
the processing of Personal Data under the Agreement, including, where applicable, EU Data
“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
Personal Data and on the free movement of such data (“Directive”) and on and after May 25,
Regulation 2016/679 of the European Parliament and of the Council on the protection of
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superseded or replaced).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
to the extent that such information is protected as personal data under applicable Data
“Privacy Shield” means the EU-US and Swiss-US Privacy Shield Frameworks, as administered by
U.S. Department of Commerce.
“Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by
Supplemental Principles) contained in Annex II to the European Commission Decision of 12
2016 pursuant to the Directive, details of which can be found at
“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
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
“Services” means any product or service provided by APPLIKU to Customer pursuant to and as
particularly described in the Agreement.
“Sub-processor” means any Processor engaged by APPLIKU or its Affiliates to assist in
its obligations with respect to providing the Services pursuant to the Agreement or this
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
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
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
Data and APPLIKU shall process Personal Data only as a Processor on behalf of Customer.
in the Agreement or this DPA shall prevent APPLIKU from using or sharing any data that
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
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
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
and (iii) to comply with other reasonable instructions provided by Customer to the extent
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
Customer’s complete and final instructions to APPLIKU in relation to the processing of
Data and processing outside the scope of these instructions (if any) shall require prior
agreement between Customer and APPLIKU.
2.5 Nature of the Data. APPLIKU handles Customer Data provided by Customer. Such Customer
may contain special categories of data depending on how the Services are used by Customer.
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;
provide customer and technical support to Customer; and (iii) disclosures as required by law
otherwise set forth in the Agreement.
2.6 APPLIKU Data. Notwithstanding anything to the contrary in the Agreement (including this
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,
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
such data in compliance with Data Protection Laws.
3.1 Authorized Sub-processors. Customer agrees that APPLIKU may engage Sub-processors to
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
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
Sub-processor on reasonable grounds relating to data protection by notifying APPLIKU
writing within five (5) calendar days of receipt of APPLIKU’s notice in accordance with
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
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
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
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
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
technical progress and development and that APPLIKU may update or modify the Security
from time to time provided that such updates and modifications do not result in the
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
APPLIKU shall provide (on a confidential basis) copies of relevant external ISMS
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
considers necessary to confirm APPLIKU’s compliance with this DPA, provided that Customer
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
located inside and outside the European Union. All other Customer Data may be transferred
processed in the United States and anywhere in the world where Customer, its Affiliates
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
(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
which do not ensure an adequate level of data protection within the meaning of applicable
Protection Laws of the foregoing territories, the parties agree that APPLIKU shall be deemed
provide appropriate safeguards for such data by virtue of having certified its compliance
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
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
or all of the Personal Data, or to Personal Data it has archived on back-up systems, which
Personal Data APPLIKU shall securely isolate and protect from any further processing, except
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
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
or applicable data protection authorities relating to the processing of Personal Data under
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
compelled to do so. If APPLIKU is required to respond to such a request, APPLIKU shall
notify Customer and provide it with a copy of the request unless legally prohibited from
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
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,
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
- 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
- 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
is in breach of this Agreement.
- Effect. Our right to suspend you or your End Users is in addition to our right to
Agreement. If we suspend you or your End Users from accessing or using any or all of the
Services: You and your End Users shall be obligated and bound to this Agreement until
Agreement is terminated, You shall remain responsible for all fees and charges incurred
any period of suspension.
- And you shall not be entitled to any payment credits for any period of
9.2 Generally. We may terminate this Agreement, with or without cause, upon providing you
three (3) days advance notice. You may terminate this Agreement at your convenience and for
reason by closing out your account and providing us with notice in accordance with Section
hereof, which shall be deemed effective upon written confirmation from us that we received
10. Effect. Upon termination of this Agreement
All your rights and your End Users' rights under this Agreement terminate immediately, We
not be responsible for the storage, backup or maintenance of any of your Customer Data,
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
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
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
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
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,
OR HARMS. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR SUBPROCESSORS SHALL BE
FOR ANY COMPENSATION, REIMBURSEMENT, RESTITUTION, DAMAGES, LOSSES OR HARMS ARISING IN
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
(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
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,
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
THAT GAVE RISE TO THE DISPUTE, CONTROVERSY, CLAIM OR ACTION.
APPLIKU DOO NOVI SAD Name: KRISTINA SGIBNEVA Title: Director/CEO