01.

Data Processing Addendum

This Data Processing Addendum (“DPA”) to the Technology-Enabled Services Agreement, or other similar master agreement relating to certain Services with Appirio, Inc. (the “Agreement”) between Customer and Appirio, Inc. (“Appirio”), to reflect the parties’ agreement about Processing of Personal Data, when applicable, in accordance with the requirements of Data Protection Laws and Regulations. References to the Agreement will be construed as including without limitation this DPA.

1. Definitions. “Data Protection Laws and Regulations” means the 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, including the EU Directive 95/46/EC (the “Directive”) and, when effective, the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”); “Personal Data” means an information relating to an identified or identifiable natural person that is governed by the Data Protection Laws; “Data Subject,” “Controller,” “Processor,” and Processing” shall have the meaning as defined under the Directive, and when in effect, GDPR. Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement.

2. Processing of Personal Data.

a. Roles of the Parties. The parties agree that Customer is the Controller solely responsible for determining the purposes and means of the processing of Personal Data, and Appirio is Customer’s processor responsible for Processing Personal Data on behalf of the Controller. Appirio shall only take action pursuant to instructions of Customer with regards to Processing Personal Data and transferring Personal Data to the United States, Japan, India or to other jurisdictions authorized by Customer. Appirio may engage sub-processors to Process Personal Data pursuant to the requirements set forth in Section 2e “Sub-Processors” below.

b. Customer’s Processing of Personal Data. Customer is solely responsible for its compliance with the Data Protection Laws and Regulations, including without limitation the lawfulness of any transfer of Personal Data to Appirio and Appirio’s Processing of Personal Data. For the avoidance of doubt, but not by way of limitation, Customer’s instructions for the Processing of Personal Data must comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data, including providing any required notices to, and obtaining any necessary consent from Data Subjects. Customer takes full responsibility to keep the amount of Personal Data provided to Appirio to the minimum necessary for the performance of the Services. Customer shall be solely responsible for establishing and maintaining any data processing registers or overview as required by any applicable law, including without limitation the Data Protection Laws and Regulations. Customer acknowledges and consents that certain business operations necessary for the fulfilment of Appirio’s services hereunder may have been transferred or will be transferred in the future to one or more dedicated Appirio affiliates independently managing the provision of such Services.

c. Customer’s Right to Issue Instructions. Appirio shall only Process Personal Data in accordance with Customer’s instructions. Subject to the terms of this DPA and with mutual agreement of the parties, Customer may issue written instructions concerning the type, extent and procedure of Processing. Customer is responsible for ensuring that all individuals who provide written instructions to Appirio are authorized by Customer to issue instructions to Appirio. Customer’s initial instructions for the Processing of Personal Data are defined by the Agreement, Schedule 1 to this DPA, and any applicable order form or Statement of Work regarding the software and Services. Any changes of the subject matter of Processing and of procedures shall be agreed upon by the parties in writing prior to becoming effective.

d. Details of Processing. The initial nature and purpose of the Processing, duration of the Processing, categories of Data Subjects, and types of Personal Data are set forth on Schedule 1.

e. Appirio Sub-Processors. Customer agrees that Appirio may engage sub-processors to Process Personal Data in accordance with the DPA. A list of sub-processors including their addresses is available upon request. When engaging sub-processors, Appirio shall enter into agreements with the sub-processors to bind them to obligations which are substantially similar or more stringent than those set out in this DPA. To the extent required, Customer explicitly mandates Appirio to sign such agreements directly with the sub-processors. Customer will not directly communicate with Appirio’s sub-processors about the software or Services, unless agreed to by Appirio in Appirio’s sole discretion. Appirio will notify Customer in advance of any changes to sub-processors using regular communication means such as email, websites, and portals. If Customer reasonably objects to the addition of a new sub-processors (e.g., such change causes Customer to be non-compliant with applicable with Data Protection Laws and Regulations), Customer shall notify Appirio in writing of its specific objections within thirty (30) days of receiving such notification. If Customer does not object within such period, the addition of the new sub-processor and, if applicable, the accession to this DPA shall be considered accepted. If Customer does object to the addition of a new sub-processor and Appirio cannot accommodate Customer’s objection, Customer may terminate the Services and software in writing within sixty (60) days of receiving Appirio’s notification.

f. Return or Deletion of Customer Personal Data. Unless otherwise required by applicable Data Protection Laws and Regulations, Appirio will destroy or return to Customer the Customer Personal Data upon termination or expiration of the Services within a reasonable period. Appirio shall have no obligation to return Customer Personal Data to Customer if the Customer Personal Data is available to Customer.

3. Representations and Warranties. Customer represents, warrants, and covenants that (a) the Personal Data has been collected and transferred to Appirio in accordance with the Data Protection Laws and Regulations; (b) prior to its transfer to Appirio, the Personal Data has been maintained, retained, secured and protected in accordance with the Data Protection Laws and Regulations; (c) Customer will respond to inquiries from Data Subjects and from applicable regulatory authorities concerning the Processing of the Personal Data, and will alert Appirio of any inquiries from Data Subjects or from applicable regulatory authorities that relate to Appirio’s Processing of the Personal Data; (d) prior to the collection of Personal Data, the Customer has obtained all necessary consents from a Data Subject for Appirio’s Processing of Personal Data in accordance with this DPA, including Processing of Personal Data; (e) Customer will make available a copy of this Agreement to any Data Subject or regulatory authorities as required by the Data Protection Laws and Regulations or upon the reasonable request of a Data Subject or a regulatory authority; (f) Customer shall be solely responsible and liable for its compliance with the Data Protection Laws and Regulations; and (g) Customer will only transfer and provide Appirio with such Personal Data required and requested by Appirio in writing to perform the Services.

4. Rights of Data Subjects. Appirio shall, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject for access to, correction, amendment or deletion of such Data Subject’s Personal Data and, to the extent applicable, Appirio shall provide Customer with commercially reasonable cooperation and assistance in relation to any such complaint, notice, or communication. Appirio shall correct erroneous Personal Data as directed by Customer in writing or pursuant to a process mutually agreed to in writing by the parties. Customer shall use its best efforts to respond to and resolve promptly all requests from Data Subjects which Appirio provides to Customer. If Data Protection Laws and Regulations require Appirio to take any corrective actions without the involvement of Customer, Appirio shall take such corrective actions and inform Customer. Customer shall be responsible for any reasonable costs arising from Appirio’s provision of such assistance under this Section. To the extent legally permitted, Customer shall be responsible for any costs arising from Appirio’s provision of such assistance.

5. Appirio Personnel. Appirio shall train personnel engaged in the Processing of Personal Data of the confidential nature of the Personal Data and provide appropriate training based on their responsibilities. Appirio shall execute written agreements with its personnel to maintain the confidentiality of Personal Data, including post the termination of the personnel engagement. Appirio shall use commercially reasonable efforts to limit access to Personal Data to personnel who require such access to perform the Agreement. If required by Data Protection Laws and Regulations, Appirio shall appoint a data protection officer. Upon request, Appirio will provide the contact details of the appointed person.

6. Security. Appirio will implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk posed by the Processing of Personal Data, taking into account the costs of implementation; the nature, scope, context, and purposes of the Processing; and the risk of varying likelihood and severity of harm to the data subjects. In assessing the appropriate level of security, Appirio shall weigh the risks presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed.

7. Audit.

a. Audit Requests. Subject to Section 7(c), upon Customer’s written request, Appirio will provide Customer with the most recent summary audit report(s) concerning the compliance and undertakings in this Agreement. Appirio’s policy is to share methodology, and executive summary information, not raw data or private information. Appirio will reasonably cooperate with Customer by providing available additional information to help Customer better understand such compliance and undertakings. To the extent it is not possible to otherwise satisfy an audit obligation mandated by applicable Data Protection Laws and Regulations and subject to Section 7(c), only the legally mandated entity (such as a governmental regulatory agency having oversight of Customer’s operations) may conduct an onsite visit of the facilities used to provide the Services. Unless mandated by Data Protection Laws and Regulations, no audits are allowed within a data center for security and compliance reasons. After conducting an audit under this Section 7 or after receiving an Appirio report under this Section 7, Customer must notify Appirio of the specific manner, if any, in which Appirio does not comply with any of the security, confidentiality, or data protection obligations in this DPA, if applicable. Any such information will be deemed Confidential Information of Appirio.

b. Sub-Processors. Customer may not audit Appirio’s sub-processors without Appirio’s and Appirio’s sub-processor’s prior agreement. Customer agrees its requests to audit sub-processors may be satisfied by Appirio or Appirio’s sub-processors presenting up-to-date attestations, reports or extracts from independent bodies, including without limitation external or internal auditors, Appirio’s data protection officer, the IT security department, data protection or quality auditors or other mutually agreed to third parties or certification by way of an IT security or data protection audit. Onsite audits at sub-processors premises may be performed by Appirio acting on behalf of Controller.

c. Audit Process. Unless required by Data Protection Laws and Regulations, Customer may request a summary audit report(s) or audit Appirio no more than once annually. Customer must provide at least four (4) weeks’ prior written notice to Appirio of a request for summary audit report(s) or request to audit. The scope of any audit will be limited to Appirio’s policies, procedures and controls relevant to the protection of Customer’s Personal Data and defined in Schedule 1. Subject to Section 7(b), all audits will be conducted during normal business hours, at Appirio’s principal place of business or other Appirio location(s) where Personal Data is accessed, processed or administered, and will not unreasonably interfere with Appirio’s day-to-day operations. An audit will be conducted at Customer‘s sole cost and by a mutually agreed upon third party who is engaged and paid by Customer, and is under a non-disclosure agreement containing confidentiality provisions substantially similar to those set forth in the Agreement, obligating it to maintain the confidentiality of all Appirio Confidential Information and all audit findings. Further, Customer agrees to pay the costs of any support provided by Appirio (including internal resources) based on Appirio’s then-current rates. Before the commencement of any such on-site audit, Appirio and Customer shall mutually agree upon the timing, and duration of the audit. Appirio will reasonably cooperate with the audit, including providing auditor the right to review but not to copy Appirio security information or materials during normal business hours. Customer shall, at no charge, provide to Appirio a full copy of all findings of the audit. The results of the audit will be considered “Confidential Information” of Appirio.

8. EU-U.S. and SWISS-U.S. Privacy Shield. Appirio 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, and Appirio shall either maintain its self-certifications to and compliance with the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks for the term of the Agreement with respect to the Processing of Personal Data that is transferred from the European Economic Area and/or Switzerland to the United States or cooperate with Customer to implement additional measures to comply with requirements under the Data Protection Laws that Customer Personal Data is adequately protected when transferred outside of the EEA. Customer acknowledges that Appirio is a US based entity and understands and agrees that Customer Personal Data may be transferred to the United States for processing.

9. Limitation of Liability. Each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA whether in contract, tort or under any other theory of liability, is subject to the “Limitation of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Agreement and this DPA. For the avoidance of doubt, Appirio’s and its affiliates’ total liability for all claims from the Customer arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and this DPA.

10. Governing Law. The parties agree that (1) governing law of this DPA, and (2) the forum for all disputes in respect of this DPA, shall be the same as set out in the Agreement, unless otherwise required by applicable Data Protection Laws and Regulations.

Schedule 1

Processing Details

Nature and Purpose of Processing

Provisioning of IT services, including services related to the implementation and integration of public cloud applications, including software as a service and platform as a service technologies such as Salesforce, Workday, and Cornerstone.

Duration of Processing and Retention of Data

Appirio will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing. Appirio will retain Personal Data as long as required under law, unless otherwise agreed to in writing.

Categories of Data Subjects

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:

  1. Customers
  2. Employees and their respective dependents, beneficiaries, and emergency contacts
  3. Contractors (including contingent workers)
  4. Volunteers, interns, temporary, and casual workers
  5. Suppliers
  6. Commercial representatives
  7. Freelancers, agents, consultants, and other professional respondents, and their respective dependents, beneficiaries, and emergency contacts
  8. Prospective employees and temporary staff
  9. Advisors, consultants, and other professionals

Type of Personal Data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and may include, but is not limited to, the following categories of Personal Data:

  1. Human resources related identification data and employee master data (which may include name, address, telephone number, email… etc.)
  2. Customer contact details related to customer relationship management (CRM) software
  3. Billing and payment data