APPOGEE HR DATA PROCESSING AGREEMENT

APPOGEE HR DATA PROCESSING AGREEMENT

The Customer agreeing to these terms (“Customer”, “You”) and Appogee HR Ltd (as applicable, “Appogee HR”, “We”, “Us”) have entered into an agreement for the provision of Services provided Appogee HR Ltd (each, as amended from time to time, an “Agreement”).

This Data Processing Agreement will, as from the Amendment Effective Date (as defined below), be effective and replace any previously applicable data processing agreement or any terms previously applicable to privacy, data processing and/or data security.

  1. Introduction
    1. This Data Processing Agreement reflects the parties’ agreement with respect to the terms governing the processing and security of Customer Data under the applicable Agreement.
  2. Definitions
    1. “Additional Security Controls” means security resources, features, functionality and/or controls that Customer may use at its option and/or as it determines. “Additional Security Controls” may include the settings and controls available to HR Managers and Administrators in the Services and other features and functionality of the Services such as the configuration of organisation, team and manager settings; user roles and access rights;  field, record and company documents security settings; and integration with third-party authentication services.
    2. “Affiliate” means any entity controlling, controlled by, or under common control with a party, where “control” is defined as: (a) the ownership of at least fifty percent (50%) of the equity or beneficial interests of the entity; (b) the right to vote for or appoint a majority of the board of directors or other governing body of the entity; or (c) the power to exercise a controlling influence over the management or policies of the entity.
    3. “Authorised User” means any individual the Customer permits to use the Services;
    4. “Agreed Liability Cap” means the maximum monetary or payment-based amount at which a party’s liability is capped under the applicable Agreement, either per annual period or event giving rise to liability, as applicable.
    5. “Alternative Transfer Solution” means a solution, other than the Model Contract Clauses, that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
    6. “Amendment Effective Date” means, as applicable:
      (a) 25th May 2018, if Customer clicked to accept or the parties otherwise agreed to this Data Processing Agreement in respect of the applicable Agreement prior to or on such date; or
      (b) the date on which Customer clicked to accept or the parties otherwise agreed to this Data Processing Agreement in respect of the applicable Agreement, if such date is after 25 May 2018.
    7. “Appogee HR Agreement” means any order form or online order specifying that We will provide the Services combined with the acceptance of the Appogee HR or Appogee Leave Terms of Service under which We agree to provide the Services to Customer.
    8. “Customer Data” means data submitted, stored, sent or received via the Services by Customer, its Affiliates or Authorised Users.
    9. “Customer Personal Data” means personal data contained within the Customer Data.
    10. “Data Incident” means a breach of Our security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data held, stored,  managed by or otherwise controlled by Us. “Data Incidents” will not include unsuccessful attempts or activities that do not result in accidental or unlawful destruction, loss, alteration or disclosure of Customer Data, including, where applicable,  unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
    11. “EEA” means the European Economic Area.
    12. “European Data Protection Legislation” means, as applicable: (a) the GDPR; and/or (b) the Federal Data Protection Act of 19 June 1992 (Switzerland).
    13. “GDPR” means 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.
    14. “Google” means Google Ireland Limited, Google LLC and their affiliates.
    15. “Model Contract Clauses” or “MCCs” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
    16. “Non-European Data Protection Legislation” means data protection or privacy legislation other than the European Data Protection Legislation.
    17. “Notification Email Address” means the email address(es) designated by Customer in the Admin Console for Customer Administrators or Customer’s Data Protection Officer, if one has been appointed, to receive certain notifications from Us.
    18. “Security Documentation” means all documents and information made available by Us under Section 7.5.1 (Reviews of Security Documentation).
    19. “Security Measures” has the meaning given in Section 7.1.1 (Appogee HR’s Security Measures).
    20. “Services” means the following services, as applicable: (a) Appogee HR; or (b) Appogee Leave; ir (c) any other services offered by Appogee HR Limited.
    21. “Services Summary” means the then-current description of the Services and related editions, as set out at https://www.appogeehr.com (or as may be updated by Us from time to time in accordance with the Appogee HR Agreement).
    22. “Subprocessors” means third parties authorized under this Data Processing Agreement to have logical access to and process Customer Data in order to provide parts of the Services and related technical support.
    23. “Term” means the period from the Amendment Effective Date until the end of Appogee HR’s provision of the Services under the applicable Agreement, including, if applicable, any period during which provision of the Services may be suspended and any post-termination period during which Appogee HR may continue providing the Services for transitional purposes.
    24. “Third Party Products” means products, services and applications that are not part of the Services but that may be accessible, via the Services or otherwise, for use with the Services.
    25. The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Data Processing Agreement have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses, in each case irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies.
  3. Duration of Data Processing Agreement.
    1. This Data Processing Agreement will take effect on the Amendment Effective Date and, notwithstanding expiry of the Term, remain in effect until, and automatically expire upon, deletion of all Customer Data by Appogee HR as described in this Data Processing Agreement.
  4. Scope of Data Protection Legislation.
    1. Application of European Legislation. The parties acknowledge and agree that the European Data Protection Legislation will apply to the processing of Customer Personal Data if, for example:
      (a) the processing is carried out in the context of the activities of an establishment of Customer in the territory of the EEA; and/or
      (b) the Customer Personal Data is personal data relating to data subjects who are in the EEA and the processing relates to the offering to them of goods or services in the EEA or the monitoring of their behaviour in the EEA.
    2. Application of Non-European Legislation. The parties acknowledge and agree that Non-European Data Protection Legislation may also apply to the processing of Customer Personal Data.
    3. Application of Data Processing Agreement. Except to the extent this Data Processing Agreement states otherwise, the terms of this Data Processing Agreement will apply irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies to the processing of Customer Personal Data.
  5. Processing of Data.
    1. Roles and Regulatory Compliance; Authorization.
      1. Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
        1. the subject matter and details of the processing are described in Appendix 1;
        2. Appogee HR is a processor of that Customer Personal Data under the European Data Protection Legislation;
        3. Customer is a controller or processor, as applicable, of that Customer Personal Data under the European Data Protection Legislation; and
        4. each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
      2. Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to Appogee HR that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of Appogee HR as another processor, have been authorized by the relevant controller.
      3. Responsibilities under Non-European Legislation. If Non-European Data Protection Legislation applies to either party’s processing of Customer Personal Data, the parties acknowledge and agree that the relevant party will comply with any obligations applicable to it under that legislation with respect to the processing of that Customer Personal Data.
    2. Scope of Processing.
      1. Customer’s Instructions. By entering into this Data Processing Agreement, Customer instructs Appogee HR to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services and related technical support; (b) as further specified via Customer’s use of the Services (including the administration and management settings and other functionality of the Services) and related technical support; (c) as documented in the form of the applicable Agreement, including this Data Processing Agreement; and (d) as further documented in any other written instructions given by Customer and acknowledged by Us as constituting instructions for purposes of this Data Processing Agreement.
      2. Appogee HR’s Compliance with Instructions. As from the Amendment Effective Date we will comply with the instructions described in Section 5.2.1 (Customer’s Instructions) (including with regard to data transfers) unless EU or EU Member State law to which We are subject requires other processing of Customer Personal Data by Us, in which case We will inform Customer (unless that law prohibits Us from doing so on important grounds of public interest) via the Notification Email Address.
    3. Third Party Products integration. If We, at our option, make any integration with Third Party Products available to Customer via the Services and if Customer opts to enable integration with those Third Party Products, the Services may allow those Third Party Products to access Customer Personal Data as required for the interoperation of the Third Party Products with the Services. For clarity, this Data Processing Agreement does not apply to the processing of personal data in connection with the provision of any Third Party Products installed or used by Customer, including personal data transmitted to or from such Third Party Products. Customer may use the functionality of the Services to enable or disable integration with the Third Party Products, and is not required to use Third Party Products in order to use the Services.
  6. Data Deletion.
    1. Deletion During Term. Appogee HR will enable Customer and/or Authorised Users to delete Customer Data during the applicable Term in a manner consistent with the functionality of the Services. If Customer or an Authorised User uses the Services to delete any Customer Data during the applicable Term and the Customer Data cannot be recovered by Customer or an Authorised User (such as from the “trash”), this use will constitute an instruction to Us to delete the relevant Customer Data from our systems in accordance with applicable law. We will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.
    2. Deletion on Term Expiry. Subject to Section 6.3 (Deferred Deletion Instruction), on expiry of the applicable Term Customer instructs Appogee HR to delete all Customer Data (including existing copies) from Our systems in accordance with applicable law. We will comply with this instruction as soon as reasonably practicable but no earlier than 30 days after the Term Expiry and within a maximum period of 180 days, unless EU or EU Member State law requires storage. Without prejudice to Section 9 (Data Subject Rights; Data Export and Return), Customer acknowledges and agrees that Customer will be responsible for exporting, before the applicable Term expires, any Customer Data it wishes to retain afterwards.
    3. Deferred Deletion Instruction. To the extent any Customer Data covered by the deletion instruction described in Section 6.2 (Deletion on Term Expiry) is also processed, when the applicable Term under Section 6.2 expires, in relation to an Agreement with a continuing Term, such deletion instruction will only take effect with respect to such Customer Data when the continuing Term expires. For clarity, this Data Processing Agreement will continue to apply to such Customer Data until its deletion by Appogee HR.
  7. Data Security.
    1. Appogee HR’s Security Measures, Controls and Assistance.
      1. Appogee HR’s Security Measures. We will implement and maintain technical and organizational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Appendix 2 (the “Security Measures”). As described in Appendix 2, the Security Measures include measures to encrypt personal data; to help ensure ongoing confidentiality, integrity, availability and resilience of Appogee HR’s systems and services; to help restore timely access to personal data following an incident; and for regular testing of effectiveness. We 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.
      2. Security Compliance by Appogee HR Staff. We will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Subprocessors to the extent applicable to their scope of performance, including ensuring that all persons authorized to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
      3. Additional Security Controls. In addition to the Security Measures, We will make the Additional Security Controls available to: (a) allow Customer to take steps to secure Customer Data; and (b) provide Customer with information about securing, accessing and using Customer Data.
      4. Appogee HR’s Security Assistance. Customer agrees that We will (taking into account the nature of the processing of Customer Personal Data and the information available to Us) assist Customer in ensuring compliance with any of Customer’s obligations in respect of security of personal data and personal data breaches, including if applicable Customer’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR, by:
        1. implementing and maintaining the Security Measures in accordance with Section 7.1.1 (Appogee HR’’s Security Measures);
        2. making the Additional Security Controls available to Customer in accordance with Section 7.1.3 (Additional Security Controls);
        3. complying with the terms of Section 7.2 (Data Incidents); and
        4. providing Customer with the Security Documentation in accordance with Section 7.5.1 (Reviews of Security Documentation) and the information contained in the applicable Agreement including this Data Processing Agreement.
    2. Data Incidents.
      1. Incident Notification. If Appogee HR becomes aware of a Data Incident, We will: (a) notify Customer of the Data Incident promptly and without undue delay; and (b) promptly take reasonable steps to minimize harm and secure Customer Data.
      2. Details of Data Incident. Notifications made pursuant to this section will describe, to the extent possible, details of the Data Incident, including the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned, and also any steps taken to mitigate the potential risks and steps We recommend Customer take to address the Data Incident.
      3. Delivery of Notification. Notification(s) of any Data Incident(s) will be delivered to the Notification Email Address or, at Our discretion, by direct communication (for example, by phone call or an in-person meeting). Customer is solely responsible for ensuring that the Notification Email Address is current and valid.
      4. No Assessment of Customer Data by Appogee HR. We will not assess the contents of Customer Data in order to identify information unless required to do so under European Data Protection Legislation. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Data Incident(s).
      5. No Acknowledgment of Fault by Appogee HR. Our notification of or response to a Data Incident under this Section 7.2 (Data Incidents) will not be construed as an acknowledgement by US of any fault or liability with respect to the Data Incident.
    3. Customer’s Security Responsibilities and Assessment.
      1. Customer’s Security Responsibilities. Customer agrees that, without prejudice to Appogee HR’s obligations under Section 7.1 (Appogee HR’s Security Measures, Controls and Assistance) and Section 7.2 (Data Incidents):
        (a) Customer is solely responsible for its use of the Services, including:
        (i) making appropriate use of the Services and both reviewing and applying the Additional Security Controls to ensure a level of security appropriate to the risk in respect of the Customer Data;
        (ii) securing the account authentication credentials, systems and devices Customer uses to access the Services; and
        (iii) backing up its Customer Data; and
        (b) Appogee HR has no obligation to protect Customer Data that Customer elects to store or transfer outside of Our and our Subprocessors’ systems (for example, offline or on-premise storage or via Third Party Products), or to protect Customer Data by implementing or maintaining Additional Security Controls except to the extent Customer has opted to use them.
      2. Customer’s Security Assessment.
        (a) Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures, the Additional Security Controls and Appogee HR’s commitments under this Section 7 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation and/or Non-European Data Protection Legislation, as applicable.
        (b) Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Us as set out in Section 7.1.1 (Appogee HR’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Data.
    4. Security Certifications and Reports.
      1. Appogee HR will do the following to evaluate and help ensure the continued effectiveness of the Security Measures:
        1. Maintain our CyberEssentials Plus Certification
        2. Ensure that our Hosting Subprocessor:
          (a) maintains their ISO 27001 Certification, the ISO 27017 Certification and the ISO 27018 Certification; and
          (b) updates their SOC 3 Report at least once every 18 months.
    5. Reviews and Audits of Compliance.
      1. Reviews of Security Documentation. In addition to the information contained in the applicable Agreement including this Data Processing Agreement, Appogee HR  will make available for review by Customer the following documents and information to demonstrate compliance by Appogee HR with its obligations under this Data Processing Agreement:
        (a) The certificates issued in relation to Our CyberEssentials Plus certification
        (b) The documentation maintained by our Hosting Subprocessor including the certificates issued in relation to the ISO 27001 Certification, the ISO 27017 Certification and the ISO 27018 Certification; and the then-current SOC 3 Report;
      2. Customer’s Audit Rights.
        (a) If the European Data Protection Legislation applies to the processing of Customer Personal Data, Appogee HR will allow Customer or an independent auditor appointed by Customer to conduct audits (including inspections) to verify Appogee HR’s compliance with its obligations under this Data Processing Agreement in accordance with Section 7.5.3 (Additional Business Terms for Reviews and Audits). Appogee HR will contribute to such audits as described in Section 7.4 (Security Certifications and Reports) and this Section 7.5 (Reviews and Audits of Compliance).
        (b) Customer may also conduct an audit to verify Appogee HR’s compliance with its obligations under this Data Processing Agreement by reviewing the Security Documentation (which reflects the outcome of audits conducted by Appogee HR’s Third Party Auditor and our Hosting Subprocessor’s Third Party Auditor).
      3. Additional Business Terms for Reviews and Audits.
        (a) Customer must send any requests for audits under Section 7.5.2(a) or 7.5.2(b) to Appogee HR’s Data Protection Team as described in Section 12 (Appogee HR Data Protection Team; Processing Records).
        (b) Following receipt by Appogee HR of a request under Section 7.5.3(a), Appogee HR and Customer will discuss and agree in advance on: (i) the reasonable start date, scope and duration of and security and confidentiality controls applicable to any audit under Section 7.5.2(a) or 7.5.2(b).
        (c) Appogee HR may charge a fee (based on Our reasonable costs) for any audit under Section 7.5.2(a) or 7.5.2(b). We will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such review or audit. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
        (d) We may object in writing to an auditor appointed by Customer to conduct any audit under Section 7.5.2(a) or 7.5.2(b) if the auditor is, in Our reasonable opinion, not suitably qualified or independent, a competitor of Appogee HR, or otherwise manifestly unsuitable. Any such objection by Us will require Customer to appoint another auditor or conduct the audit itself.
      4. No Modification of MCCs. Nothing in this Section 7.5 (Reviews and Audits of Compliance) varies or modifies any rights or obligations of Customer or Us under any Model Contract Clauses entered into as described in Section 10.2 (Transfers of Data Out of the EEA).
  8. Impact Assessments and Consultations.
    1. Customer agrees that Appogee HR will (taking into account the nature of the processing and the information available to Us) assist Customer in ensuring compliance with any obligations of Customer in respect of data protection impact assessments and prior consultation, including if applicable Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:
      1. providing the Additional Security Controls in accordance with Section 7.1.3 (Additional Security Controls) and the Security Documentation in accordance with Section 7.5.1 (Reviews of Security Documentation); and
      2. providing the information contained in the applicable Agreement including this Data Processing Agreement.
  9. Data Subject Rights; Data Export and Return.
    1. Access; Rectification; Restricted Processing; Portability. During the applicable Term, Appogee HR will, in a manner consistent with the functionality of the Services, enable Customer to access, rectify and restrict processing of Customer Data, including via the deletion functionality provided by Us as described in Section 6.1 (Deletion During Term).
    2. Data Export and Return; Appogee HR will enable Customer to export or retrieve Customer Data using the “Employee Data Export” functionality of the Services during the Term or, by raising a support case no later than 14 days after expiry of the Term to request temporary access to complete an export only. Customer is solely responsible for ensuring all Data required has been exported before the automatic data deletion takes place as per clause 6.2.
    3. Data Subject Requests.
      1. Customer’s Responsibility for Requests. During the applicable Term, if Appogee HR receives any request from a data subject in relation to Customer Personal Data, We will advise the data subject to submit his/her request to Customer, and Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Services.
      2. Appogee HR’s Data Subject Request Assistance. Customer agrees that (taking into account the nature of the processing of Customer Personal Data) We will assist Customer in fulfilling any obligation to respond to requests by data subjects, including if applicable Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR, by: (a) providing the Additional Security Controls in accordance with Section 7.1.3 (Additional Security Controls);
        and (b)complying with the commitments set out in Section 9.1 (Access; Rectification; Restricted Processing; Portability) and Section 9.2.1 (Customer’s Responsibility for Requests).
  10. Data Transfers.
    1. Data Storage and Processing Facilities.
      1. Appogee HR stores and processes Customer Data in Data Centers solely within the EEA.
      2. Customer agrees that We may, subject to Section 10.2 (Transfers of Data Out of the EEA), store and process Customer Data in the United States and any other country in which our Hosting Subprocessor maintains facilities if required by Appogee HR on an interim basis for operational, availability or security reasons for performance of the contract and provision of the Services.
    2. Transfers of Data Out of the EEA.
      1. Appogee HR’s Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 10.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), Appogee HR will:
        (a) ensure that our Hosting Subprocessor as the data importer of the Transferred Personal Data enters into Model Contract Clauses with Appogee HR as the data exporter of such data, and that the transfers are made in accordance with such Model Contract Clauses; and/or
        (b) offer an Alternative Transfer Solution, ensure that the transfers are made in accordance with such Alternative Transfer Solution, and make information available to Customer about such Alternative Transfer Solution.
      2. Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that:
        if under the European Data Protection Legislation Appogee HR reasonably requires Customer to use an Alternative Transfer Solution offered by Appogee HR, and reasonably requests that Customer take any action (which may include execution of documents) strictly required to give full effect to such solution, Customer will do so.
    3. Data Center Information. As per 10.1.1 Appogee HR stores and processes data in the European Data Centers of our Hosting Subprocessor. Information about the locations is available at: https://www.google.com/about/datacenters/inside/locations/index.html (as may be updated by Google from time to time).
    4. Disclosure of Confidential Information Containing Personal Data. If Appogee HR has entered into Model Contract Clauses with our Hosting Subprocessor as described in Section 10.2 (Transfers of Data Out of the EEA), Appogee HR will, notwithstanding any term to the contrary in the applicable Agreement, ensure that any disclosure of Customer’s Confidential Information containing personal data, and any notifications relating to any such disclosures, will be made in accordance with such Model Contract Clauses.
  11. Subprocessors.
    1. Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Google as a Subprocessor (“Hosting Subprocessor”) for the provision of hosting and platform services and Ancoris Limited as a Subprocessor for the provision of support, testing and other related services. In addition, Customer generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If Appogee HR has entered into Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting to Google LLC of the processing of Customer Data if such consent is required under the Model Contract Clauses.
    2. Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at https://www.appogeehr.com/terms/subprocessors.html (as may be updated by Us from time to time in accordance with this Data Processing Agreement).
    3. Requirements for Subprocessor Engagement. When engaging any Subprocessor, We will:
      (a) ensure via a written contract that:
      (i) the Subprocessor only accesses and uses Customer Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the applicable Agreement (including this Data Processing Agreement) and any Model Contract Clauses entered into or Alternative Transfer Solution as described in Section 10.2 (Transfers of Data Out of the EEA); and
      (ii) if the GDPR applies to the processing of Customer Personal Data, the data protection obligations set out in Article 28(3) of the GDPR, as described in this Data Processing Agreement, are imposed on the Subprocessor; and
      (b) remain fully liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
    4. Opportunity to Object to Subprocessor Changes.
      (a) When we intend to appoint any new Third Party Subprocessor during the applicable Term, we will inform Customer of the engagement (including the name and location of the relevant subprocessor and the activities it will perform) either by sending an email to the Notification Email Address or via the “Billing and Data Protection” Admin section of the Services.
      (b) Customer may object to any new Third Party Subprocessor by terminating the applicable Agreement immediately upon written notice to Us, on condition that Customer provides such notice within 90 days of being informed of the engagement of the subprocessor as described in Section 11.4(a). This termination right is Customer’s sole and exclusive remedy if Customer objects to any new Third Party Subprocessor.
  12. Appogee HR Data Protection Team; Processing Records.
    1. Appogee HR Data Protection Team. Appogee HR Data Protection Team can be contacted by Customer’s Administrators or Customer’s Data Protection Officer by raising a case by email to dataprotection@appogeehr.com.
    2. Appogee HR’s Processing Records. Customer acknowledges that Appogee HR is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Appogee HR is acting and, where applicable, of such processor’s or controller’s local representative (Customer Administrators) and data protection officer; and (b) make such information available to the supervisory authorities where required under applicable European Data Protection Legislation. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to Appogee HR via the “Billing and Data Protection” section available to Customer Administrator in the Services or other means provided by Appogee HR, and will use the  “Billing and Data Protection” administration section in the Services or such other means to ensure that all information provided is kept accurate and up-to-date.
  13. Liability.
    1. Liability Cap. If Model Contract Clauses have been entered into as described in Section 10.2 (Transfers of Data Out of the EEA), the total combined liability of either party and its Affiliates towards the other party and its Affiliates under or in connection with the applicable Agreement and such Model Contract Clauses combined will be limited to the Agreed Liability Cap for the relevant party, subject to Section 13.2 (Liability Cap Exclusions).
    2. Liability Cap Exclusions. Nothing in Section 13.1 (Liability Cap) will affect the remaining terms of the applicable Agreement relating to liability (including any specific exclusions from any limitation of liability).
  14. Effect of Agreement.
    1. To the extent of any conflict or inconsistency between the terms of this Data Processing Agreement and the remainder of the applicable Agreement, the terms of this Data Processing Agreement will govern. Subject to the terms in this Data Processing Agreement, such Agreement remains in full force and effect. For clarity, if Customer has entered more than one Agreement, this Data Processing Agreement will amend each of the Agreements separately.

 

Appendix 1: Subject Matter and Details of the Data Processing

 

  1. Subject Matter: Appogee HR’s provision of the Services and related technical support to Customer.
  2. Duration of the Processing: The applicable Term plus the period from expiry of such Term until deletion of all Customer Data by Appogee HR in accordance with the Data Processing Agreement.
  3. Nature and Purpose of the Processing: Appogee HR will process Customer Personal Data submitted, stored, sent or received by Customer, its Affiliates or Authorised Users via the Services for the purposes of providing the Services and related technical support to Customer in accordance with the Data Processing Agreement.
  4. Categories of Data: Personal data submitted, stored, sent or received by Customer, its Affiliates or Authorised Users via the Services may include the following categories of data: user IDs, names, email, phone numbers, documents, records, data related to the employment of the Authorised Users by the Customer and other data.
  5. Data Subjects: Personal data submitted, stored, sent or received via the Services may concern the following categories of data subjects: Authorised Users including Customer’s employees and contractors; the personnel of Customer’s customers, suppliers and subcontractors; and any other person who transmits data via the Services, including individuals collaborating and communicating with Authorised Users.

Appendix 2: Security Measures

 

As from the Amendment Effective Date, Appogee HR and our Hosting Subprocessor will implement and maintain the Security Measures set out in this Appendix 2 to the Data Processing Agreement. We may update or modify such 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.

 

  1. Data Center & Network Security.
    1. Data Centers.
      1. Infrastructure. our Hosting Subprocessor maintains geographically distributed data centers. our Hosting Subprocessor stores all production data in physically secure data centers.
      2. Redundancy. Infrastructure systems have been designed to eliminate single points of failure and minimize the impact of anticipated environmental risks. Dual circuits, switches, networks or other necessary devices help provide this redundancy. The data center hosting and platform services are designed to allow our Hosting Subprocessor to perform certain types of preventative and corrective maintenance without interruption. All environmental equipment and facilities have documented preventative maintenance procedures that detail the process for and frequency of performance in accordance with the manufacturer’s or internal specifications. Preventative and corrective maintenance of the data center equipment is scheduled through a standard change process according to documented procedures.
      3. Power. The data center electrical power systems are designed to be redundant and maintainable without impact to continuous operations, 24 hours a day, and 7 days a week. In most cases, a primary as well as an alternate power source, each with equal capacity, is provided for critical infrastructure components in the data center. Backup power is provided by various mechanisms such as uninterruptible power supplies (UPS) batteries, which supply consistently reliable power protection during utility brownouts, blackouts, over voltage, under voltage, and out-of-tolerance frequency conditions. If utility power is interrupted, backup power is designed to provide transitory power to the data center, at full capacity, for up to 10 minutes until the diesel generator systems take over. The diesel generators are capable of automatically starting up within seconds to provide enough emergency electrical power to run the data center at full capacity typically for a period of days.
      4. Server Operating Systems. Our Hosting Subprocessor’s servers use a Linux based implementation customized for the application environment. Data is stored using proprietary algorithms to augment data security and redundancy. They employ a code review process to increase the security of the code used to provide the hosting and platform services and enhance the security products in production environments.
      5. Businesses Continuity. Our Hosting Subprocessor replicates data over multiple systems to help to protect against accidental destruction or loss. They have designed and regularly plan and test their business continuity planning/disaster recovery programs. We maintain a business continuity plan for our application development, sales, marketing and support operations.
    2. Networks & Transmission.
      1. Data Transmission. Data centers are typically connected via high-speed private links to provide secure and fast data transfer between data centers. This is designed to prevent data from being read, copied, altered or removed without authorization during electronic transfer or transport or while being recorded onto data storage media. Our Hosting Subprocessor transfers data via Internet standard protocols.
      2. External Attack Surface. Our Hosting Subprocessor employs multiple layers of network devices and intrusion detection to protect its external attack surface. They consider potential attack vectors and incorporates appropriate purpose built technologies into external facing systems.
      3. Intrusion Detection. Intrusion detection is intended to provide insight into ongoing attack activities and provide adequate information to respond to incidents. Our Hosting Subprocessor’s intrusion detection involves:
        1. Tightly controlling the size and make-up of their attack surface through preventative measures;
        2. Employing intelligent detection controls at data entry points; and
        3. Employing technologies that automatically remedy certain dangerous situations.
      4. Incident Response. They monitor a variety of communication channels for security incidents, and their security personnel will react promptly to known incidents.
      5. Encryption Technologies. Our Hosting Subprocessor makes HTTPS encryption (also referred to as SSL or TLS connection) available. Their servers support ephemeral elliptic curve Diffie-Hellman cryptographic key exchange signed with RSA and ECDSA. These perfect forward secrecy (PFS) methods help protect traffic and minimize the impact of a compromised key, or a cryptographic breakthrough.
  2. Access and Site Controls.
    1. Site Controls.
      1. On-site Data Center Security Operation. Our Hosting Subprocessor’s data centers maintain an on-site security operation responsible for all physical data center security functions 24 hours a day, 7 days a week. The on-site security operation personnel monitor Closed Circuit TV (CCTV) cameras and all alarm systems. On-site Security operation personnel perform internal and external patrols of the data center regularly.
      2. Data Center Access Procedures. Our Hosting Subprocessor maintains formal access procedures for allowing physical access to the data centers. The data centers are housed in facilities that require electronic card key access, with alarms that are linked to the on-site security operation. All entrants to the data center are required to identify themselves as well as show proof of identity to on-site security operations. Only authorized employees, contractors and visitors are allowed entry to the data centers. Only authorized employees and contractors are permitted to request electronic card key access to these facilities. Data center electronic card key access requests must be made through e-mail, and require the approval of the requestor’s manager and the data center director. All other entrants requiring temporary data center access must: (i) obtain approval in advance from the data center managers for the specific data center and internal areas they wish to visit; (ii) sign in at on-site security operations; and (iii) reference an approved data center access record identifying the individual as approved.
      3. On-site Data Center Security Devices. Our Hosting Subprocessor’s data centers employ an electronic card key and biometric access control system that is linked to a system alarm. The access control system monitors and records each individual’s electronic card key and when they access perimeter doors, shipping and receiving, and other critical areas. Unauthorized activity and failed access attempts are logged by the access control system and investigated, as appropriate. Authorized access throughout the business operations and data centers is restricted based on zones and the individual’s job responsibilities. The fire doors at the data centers are alarmed. CCTV cameras are in operation both inside and outside the data centers. The positioning of the cameras has been designed to cover strategic areas including, among others, the perimeter, doors to the data center building, and shipping/receiving. On-site security operations personnel manage the CCTV monitoring, recording and control equipment. Secure cables throughout the data centers connect the CCTV equipment. Cameras record on site via digital video recorders 24 hours a day, 7 days a week. The surveillance records are retained for up to 30 days based on activity.
    2. Access Control.
      1. Infrastructure Security Personnel. Our Hosting Subprocessor has, and maintains, a security policy for its personnel, and requires security training as part of the training package for its personnel. Our Hosting Subprocessor’s infrastructure security personnel are responsible for the ongoing monitoring of their security infrastructure, the review of the hosting and platform services, and responding to security incidents.
      2. Application Development and Support Personnel. We and our support services subprocessor have, and maintain,  a security policy for our personnel, and require security training as part of the training package for its personnel consistent with our Cyber Essential Plus certifications. Our personnel are responsible for the ongoing monitoring of our application infrastructure, the review of the Services, and responding to security incidents including those raise by our Hosting Subprocessor.
      3. Access Control and Privilege Management. Customer’s Administrators and Authorised Users must authenticate themselves via a central authentication system or via a single sign on system in order to use the Services. Each application checks credentials in order to allow the display of data to an authorized Authorised User or authorized Administrator.
      4. Internal Data Access Processes and Policies – Access Policy. Our Hosting Subprocessor and Appogee HR maintain internal data access processes and policies are designed to prevent unauthorized persons and/or systems from gaining access to systems used to process personal data.  Our Hosting Subprocessor aims to design its systems to: (i) only allow authorized persons to access data they are authorized to access; and (ii) ensure that personal data cannot be read, copied, altered or removed without authorization during processing, use and after recording. The systems are designed to detect any inappropriate access. They employs a centralized access management system to control personnel access to production servers, and only provide access to a limited number of authorized personnel. LDAP, Kerberos and a proprietary system utilizing SSH certificates are designed to provide them with secure and flexible access mechanisms. These mechanisms are designed to grant only approved access rights to site hosts, logs, data and configuration information.
      5. Both Appogee HR and our Subprocessors require the use of unique user IDs, strong passwords, two factor authentication and carefully monitored access lists to minimize the potential for unauthorized account use. The granting or modification of access rights is based on: the authorized personnel’s job responsibilities; job duty requirements necessary to perform authorized tasks; and a need to know basis. The granting or modification of access rights must also be in accordance with internal data access policies and training. Access to systems is logged to create an audit trail for accountability. Where passwords are employed for authentication (e.g., login to workstations), password policies that follow at least industry standard practices are implemented. These standards include password expiry, restrictions on password reuse and sufficient password strength.
  3. Data.
    1. Data Storage, Isolation & Authentication. Our Hosting Subprocessor stores data in a multi-tenant environment on their own owned servers. Data, the hosting nad platform services database and file system architecture are replicated between multiple geographically dispersed data centers.  Appogee HR logically isolates data on a per Customer and per User basis at the application layer. This logically isolates each Customer’s data, and logically separates each Authorised User’s data from the data of other Authorised Users, and data for an authenticated Authorised User will not be displayed to another Authorised User (unless the Customer Administrator allows the data to be shared using the Additional Security Measures ). Customer will be given control over specific data sharing policies via the Additional Security Measures. Those policies, in accordance with the functionality of the Services, will enable Customer to determine the information access settings applicable to Authorised Users for specific purposes based on their roles. Customer may choose to make use of certain logging or auditing capability that Appogee HR may make available via the Services.
    2. Decommissioned Disks and Disk Erase Policy. Certain disks containing data at our Hosting Subprocessor’s data centers may experience performance issues, errors or hardware failure that lead them to be decommissioned (“Decommissioned Disk”). Every Decommissioned Disk is subject to a series of data destruction processes (the “Disk Erase Policy”) before leaving our Hosting Subprocessor’s premises either for reuse or destruction. Decommissioned Disks are erased in a multi-step process and verified complete by at least two independent validators. The erase results are logged by the Decommissioned Disk’s serial number for tracking. Finally, the erased Decommissioned Disk is released to inventory for reuse and redeployment. If, due to hardware failure, the Decommissioned Disk cannot be erased, it is securely stored until it can be destroyed. Each facility is audited regularly to monitor compliance with the Disk Erase Policy.
  4. Personnel Security.
    1. Appogee HR and our Subprocessor’s personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. Appogee HR and our Subprocessors conduct reasonably appropriate backgrounds checks to the extent legally permissible and in accordance with applicable local labor law and statutory regulations.
    2. Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, our and our Subprocessors confidentiality and privacy policies. Personnel are provided with security training. Personnel handling Customer Data are required to complete additional requirements appropriate to their role (eg., certifications).
  5. Subprocessor Security.
    1. Before onboarding Subprocessors, We review the security and privacy practices of Subprocessors to ensure Subprocessors provide a level of security and privacy appropriate to their access to data and the scope of the services they are engaged to provide. Once We have assessed the risks presented by the Subprocessor, then subject always to the requirements set out in Section 11.3 (Requirements for Subprocessor Engagement) of this Data Processing Agreement, the Subprocessor is required to enter into appropriate security, confidentiality and privacy contract terms.

Appogee HR Data Processing Agreement  v1.1 – May 2018