This Data Processing Addendum (“DPA”) forms a part of each Customer’s End User License Agreement (the “Agreement”) with Airpelago AB (hereinafter “Airpelago”). It is effective as of the DPA Effective Date (defined below).
Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of its Controller Affiliates (defined below). For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Controller Affiliates. All capitalized terms not defined herein shall have the meanings set forth in the Agreement.
In the course of providing the Services under the Agreement, Airpelago may Process certain Personal Data on behalf of its Customers. If the storage and/or processing of Personal Data involves transfers of Personal Data out of the EEA and European Data Protection Legislation applies to the transfers of such data (collectively, “Transferred Personal Data”), then the parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Controller Affiliate” means any of Customer’s Affiliates (a)(1) that are subject to applicable Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (2) permitted to use the Services pursuant to the Agreement between Customer and Airpelago, but have not signed their own End User License Agreement and are not a “Customer” as defined by the Agreement, (b) if and to the extent Airpelago processes Personal Data for which such Affiliates qualify as the Controller.
“Data Protection Laws” means all laws and regulations, including laws and binding regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“DPA Effective Date” means either (i) May 10, 2022, if the date on which you electronically accept or otherwise agree or opt-in to this DPA is prior to that date; or (ii) the date on which you electronically accept or otherwise agree or opt-in to this DPA, if that date is after May 10, 2022.
“Airpelago” means Airpelago AB, the entity which is a party to this DPA.
“GDPR” means 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” means any Customer Data that relates to an identified or identifiable natural person, to the extent that such information is protected as personal data under applicable Data Protection Laws.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Subprocessor” means any entity engaged by Airpelago to Process Personal Data in connection with the Services.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
If European Data Protection Legislation applies to the processing of Customer’s Personal Data, the parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Airpelago is the Processor, that Airpelago will engage Sub-processors pursuant to the requirements set forth in Section 4 “Sub-Processors” below and that the subject matter and details of the processing are as more fully described within this Section 2.
Customer shall, in its use of the Services and provision of instructions, Process personal Data in accordance with the requirements of applicable Data Protection Law. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
As Customer’s Processor, Airpelago shall only Process Personal Data for the following purposes:
You will not submit, store, or send any sensitive data or special categories of Personal Data (collectively, “Sensitive Data”) to us for processing, and you will not permit nor authorize any of your employees, agents, contractors, or data subjects to submit, store, or send any Sensitive Data to us for processing. You acknowledge that we do not request or require Sensitive Data as part of providing the Service to you, that we do not wish to receive or store Sensitive Data, and that our obligations in this DPA will not apply with respect to Sensitive Data.
Airpelago shall, to the extent legally permitted, promptly notify Customer if Airpelago receives any requests from a Data Subject to exercise the following Data Subject rights in relation to Personal Data: access, rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or to not be subject to an automated individual decision making (each, a “Data Subject Request”). Taking into account the nature of the Processing, Airpelago shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under applicable Data Protection Laws. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Airpelago shall, upon Customer’s request, provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Airpelago is legally permitted to do so and to the response to such Data Subject Request is required under applicable Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from Airpelago’s provision of such assistance, including any fees associated with provision of additional functionality.
Customer acknowledges and agrees that Airpelago may engage third-party Subprocessors in connection with the provision of the Services. As a condition to permitting a third-party Subprocessor to Process Personal Data, Airpelago will enter into a written agreement with each Subprocessor containing data protection obligations that provide at least the same level of protection for Personal Data as those in this DPA, to the extent applicable to the nature of the Services provided by such Subprocessor. Customer acknowledges that Airpelago is located in the United States and is involved in providing the Services to Customer either directly or through the provision of support to Airpelago.
A current list of Subprocessors for the Services, including the identities of those Subprocessors and their country of location will be made available upon request. Customer may receive notifications of new Subprocessors by emailing compliance@Airpelago.com. Airpelago shall provide the subscriber with the notification of new Subprocessors(s) before authorizing such new Subprocessor(s) to Process Personal Data in connection with the provision of the applicable Services.
Customer may reasonably object to Airpelago’s use of a new Subprocessor (e.g., if making Personal Data available to the Subprocessor may violate applicable Data Protection Law or weaken the protections for such Personal Data) by notifying Airpelago promptly in writing within ten (10) business days after receipt of Airpelago’s notice in accordance with the mechanism set out in Section 4.2. Such notice shall explain the reasonable grounds for the objection. In the event Customer objects to a new Subprocessor, Airpelago will use commercially reasonable efforts to make available to Customer a change in the Services or recommend commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Subprocessor without unreasonably burdening Customer. If Airpelago is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, either party may terminate without penalty the applicable End User License Agreement(s) with respect only to those Services which cannot be provided by Airpelago without the use of the objected-to new Subprocessor by providing written notice to Airpelago. Airpelago will refund Customer any prepaid fees covering the remainder of the term of such End User License Agreement(s) following the effective dta of the termination with respect to such terminated Services, without imposing a penalty for such termination to Customer.
Airpelago shall be liable for the acts and omissions of its Subprocessors to the same extent Airpelago would be liable if performing the Services of each Subprocessor directly under the terms of this DPA.
Airpelago shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data, as set forth in Airpelago’s Information Security Policy. Airpelago regularly monitors compliance with these measures. Airpelago will not materialy decrease the overall security of the Services during a subscription term.
Airpelago maintains security incident management policies and procedures specified in the Information Security Policy. Airpelago shall notify Customer without undue delay of any breach relating to Personal Data (within the meaning of applicable Data Protection Law) of which Airpelago becomes aware and which may require a notification to be made to a Supervisory Authority or Data Subject under applicable Data Protection Law or which Airpelago is required to notify to Customer under applicable Data Protection Law (a “Personal Data Incident”). Airpelago shall provide commercially reasonable cooperation and assistance in identifying the cause of such Personal Data Incident and take commercially reasonable steps to remediate the cause to the extent the remediation is within Airpelago’s control. Except as required by applicable Data Protection Law, the obligations herein shall not apply to incidents that are caused by Customer, Authorized Users and/or any non-Airpelago Products.
Upon termination of the Services for which Airpelago is Processing Personal Data, Airpelago shall, upon Customer’s request, and subject to the limitations described in the Agreement and the Information Security Policy, return all Personal Data in Airpelago’s possession to Customer or securely destroy such Personal Data and demonstrate to the satisfaction of Customer that it has taken such measures, unless applicable law prevents it from returning or destroying all or part of Personal Data. For clarification, depending on the Service plan purchased by Customer, access to export functionality may incur additional charges and/or require purchase of a Service upgrade.
The parties acknowledge and agree that, by executing the DPA, customer enters into the DPA on behalf itself and, as applicable, in the name and on behalf any Controller affiliates, thereby establishing a separate DPA between Airpelago and each such Controller Affiliate subject to the provisions of the Agreement and this Section 8 and Section 9. Each Controller Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, a Controller Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services by Controller Affiliates must comply with the terms and conditions of the Agreement and any violation by Customer by a Customer Affiliate shall be deemed to be a violation by the customer.
The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Airpelago under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Controller Affiliates.
If a Controller Affiliate becomes a party to the DPA with Airpelago, it shall, to the extent required under applicable Data Protection Laws, also be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
8.3.1 Except where applicable Data Protection Laws require the Controller Affiliate to exercise a right or seek any remedy under this DPA against Airpelago itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Controller Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Controller Affiliate individually but in a combined manner for all of its Controller Affiliates together (as set forth, for example, in section 8.3.2 below).
8.3.2 The parties agree that the Customer that is the contracting party to the Agreement shall, if carrying out an on-site audit of the Airpelago procedures relevant to the protection of personal Data, take all reasonable measures to limit any impact to Airpelago by combining, to the extent reasonable, possible several audit requests carried out on behalf of different Controller Affiliates in to one single audit.
Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Controller Affiliates and Airpelago, whether in contract, tort or under any other theory of liability, is subject to the “Limitations of Liability” Section of the Agreement, and any reference in such section to the liability of a parth means the aggregate liability of the party and all of its Affiliates under the agreement and all DPAs together.
For the avoidance of doubt, Airpelago’s total liability for all claims for the Customer and all of its Controller Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under the Agreement, including by Customer and all Controller Affiliates, and in particular, shall not be understood to apply individually and severally to Customer and/or to any Controller Affiliate that is a contractual party to any such DPA.
With effect from 25 May 2018, Airpelago will Process Personal Data in accordance with the GDPR requirements directly applicable to Airpelago’s provisioning of the services.
10.1.1 Data Protection Impact Assessment
Upon Customer’s request, Airpelago shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligations under the GDPR to carry out a data protection impact assessment related to Customer’ use of the services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available, to Airpelago. Airpelago shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority, to the extent required under the GDPR.
As of the effective data of this DPA, Airpelago self-certifies to and complies with the EU-U.S. and Swiss-U.S Privacy Shield Frameworks, as administered by the US Department of Commerce.
This DPA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with the laws of the Sweden.