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Kigo EU Data Processing Agreement

This EU Data Processing Agreement (“DPA”) forms part of the Kigo Terms of Service between Client and Kigo (“Agreement”) and applies to the extent that Kigo processes Personal Data on behalf of Client when providing services under the Agreement. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

1. DEFINITIONS

1.1 “Data Controller” means an entity that determines the purposes and means of the processing of Personal Data.

1.2 “Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.

1.3 “Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.

1.4 “EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”); and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”).

1.5 “EU Model Clauses” means the standard contractual clauses for Data Processors as approved by the European Commission pursuant to Decision C (2010)593, as they may be amended or replaced from time to time.

1.6 “Personal Data” means any information relating to an identified or identifiable natural person regulated by the Directive, the General Data Protection Regulation and local data protection laws applicable within a specific EU Member Country.

1.7 “Personal Data Breach” means a breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.

1.8 “Sub-processor” means any Data Processor engaged by Kigo or any Kigo Party that processes Personal Data pursuant to the Agreement. Sub-processors may include third parties or any member of Kigo’s group of companies.

2. SCOPE OF THIS DPA

2.1 Scope of DPA. This DPA applies to the extent that: (i) Kigo processes Personal Data on behalf of Client in the course of licensing services to Client; and (ii) the Agreement expressly incorporates this DPA by reference.

3. ROLES AND SCOPE OF PROCESSING

3.1 Role of the Parties: As between Kigo and Client, Client is the Data Controller of the Personal Data and Kigo shall process Personal Data only as a Data Processor (or sub-processor) acting on behalf of Client.

3.2 Client Processing of Personal Data: Client will (i) comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to Kigo; and (ii) provide notice and will obtain all consents and rights necessary for Kigo to process Personal Data pursuant to the Agreement and this DPA.

3.3 Kigo Processing of Personal Data: As a Data Processor, Kigo will process Personal Data only for the purpose of providing the services and in accordance with Client’s lawful documented instructions as set forth in the Agreement and this DPA. In particular, Client’s instructions with regard to the nature and purposes of the processing are set out at Annex A, which forms a part of this DPA. Processing outside the scope of these instructions (if any) will require prior written agreement between the parties (each acting reasonably) including agreement over any additional fees (if any) Client may be required to pay to Kigo for carrying out such instructions. For the avoidance of doubt, Kigo shall be entitled to treat any instruction provided by Client to Kigo pursuant to this DPA as an instruction of Client.

4. SUBPROCESSING

4.1 Sub-processors. Kigo may engage Sub-processors to process Personal Data under the Agreement. Kigo shall enter into contractual terms with any such Sub-processor that obligates the Sub-processor to protect the Personal Data in a manner that is substantially similar to the standards set forth in this DPA. Kigo shall be responsible for any breaches of this DPA by Kigo to the extent caused by such Sub-processors. Kigo shall provide a list of Sub-processors that it currently engages to support the provision of the Services upon written request by Client and/or Client.

4.2 Changes to Sub-processors: Notwithstanding Client’s general initial consent to Sub-processors pursuant to Section 4.1 above, Kigo agrees: (a) to provide at least thirty (30) days’ prior notice to Client of the engagement of any new Sub-processor; and (b) where Client, within ten (10) calendar days of receiving such notice objects to a new Sub-processor on reasonable data protection grounds, then the parties will discuss such concerns in good faith with a view to achieving resolution.

5. SECURITY MEASURES AND DATA BREACH RESPONSE

5.1 Security Measures: Kigo will implement and maintain appropriate technical and organizational security measures to protect against Personal Data Breaches and to preserve the security and confidentiality of Personal Data processed by Kigo on behalf of Client in the provision of the services (“Security Measures”).

5.2 Updates to Security Measures: The Security Measures are subject to technical progress and development. Kigo may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the services purchased by the Client.

5.3 Personnel. Kigo shall ensure that any person authorized by Kigo to process Personal Data is subject to an obligation of confidentiality.

5.4 Data Breach Response: Upon becoming aware of a Personal Data Breach, Kigo will notify Client for Client without undue delay and will provide information relating to the Personal Data Breach as reasonably requested by Client and/or Client. Kigo will take the mitigation steps required by the Agreement to address the Personal Data Breach.

6. AUDIT REPORTS

6.1 Audit Reports. Kigo audits its compliance against data protection and information security standards on a regular basis. Kigo shall conduct such audits using its internal audit team or with third party auditors engaged by Kigo. Upon Client’s request, and subject to obligations of confidentiality, Kigo will provide to Client and/or Client a summary of its most recent relevant audit report (“Report”) to permit Client and/or Client to verify Kigo’s compliance with this DPA. The Report is Kigo’s Confidential Information, and Client and Client will protect the Report in accordance with the confidentiality provisions of the Agreement or as otherwise agreed between Kigo and Client. Kigo will respond in a timely manner to Client’s or Client’s reasonable written enquiries related to data protection. The provision of the Report by Kigo shall fulfil any audit cooperation responsibilities that may apply to Kigo under Data Protection Laws.

7. DATA TRANSFERS & EXPORTS

7.1 Data Transfers. Kigo may transfer and process Personal Data to and in other locations around the world, including the United States, where Kigo and/or its Sub-processors maintain data processing operations as necessary to provide the Services and as required by applicable law. All international transfers and processing of Personal Data will at all times be subject to the requirements of this Section 7, and Kigo will continue to protect Personal Data to no less a standard than is required by the laws of the country from which the Personal Data is transferred.

7.2 Data Transfers from the EEA and Switzerland: If Client is located in the European Economic Area (“EEA”) or Switzerland, Kigo may process Personal Data outside of those territories in a country that is not recognized by the European Commission or the Swiss Federal Data Protection Authority as providing an adequate level of protection for Personal Data. For transfers of Personal Data to Kigo for processing by Kigo in a jurisdiction other than a jurisdiction in the EU, the EEA, or the European Commission-approved countries providing ‘adequate’ data protection, Kigo agrees it will (a) provide at least the same level of privacy protection for EU Personal Data as required under the U.S.-EU and U.S.-Swiss Privacy Shield frameworks; or (b) if such frameworks are subsequently invalidated, the EU Model SCCs in Annex B shall immediately take effect and be deemed executed and incorporated into this DPA.

8. DELETION OF DATA

8.1 Deletion of Data: Following expiration or termination of the Agreement, Kigo shall delete or return to Client (or if Client directs, Client) all Personal Data in Kigo’s possession, as provided in the Agreement except to the extent Kigo is required by applicable law to retain some or all of the Personal Data (in which case Kigo shall implement reasonable measures to isolate the Personal Data from any further processing).

9. COOPERATION

9.1 Data Protection Requests. To the extent that Client and/or Client is unable to access the relevant Personal Data through the use of account management tools provided as part of the Services, Kigo shall cooperate with Client and/or Client at Client’s expense to permit Client and/or Client to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement, including requests from individuals seeking to exercise their rights under EU Data Protection Law. If any such request is made directly to Kigo, Kigo shall not respond to such communication directly without Client’s and/or Client’s prior authorization, unless legally compelled to do so. If Kigo is required to respond to such a request, Kigo will promptly notify Client and provide Client and/or Client with a copy of the request, unless legally prohibited from doing so.

9.2 Legal Disclosure Requests. If Kigo is required to disclose any Personal Data in response to a subpoena, court order, warrant, audit or agency action, Kigo will promptly notify the Client and provide Client and/or Client with a copy of the demand, unless legally prohibited from doing so.

9.3 DPIAs and Prior Consultations. To the extent Kigo is required under EU Data Protection Laws, Kigo will at Client’s expense provide reasonably requested information regarding the Services to enable the Client and/or Client to carry out data protection impact assessments and prior consultations with data protection authorities as required by law.

10. GENERAL

10.1 Relationship with Agreement. Any claims brought under this DPA shall be subject to the terms and conditions of the Agreement, including but not limited to the exclusions and limitations set forth in the Agreement. Any claims against Kigo or any of the Kigo Parties under this DPA shall be brought solely against the entity that is a party to the Agreement giving rise to such claim. In no event shall any party limit its liability under the Agreement with respect to any individual’s data protection rights under this DPA or pursuant to applicable law.

10.2 Conflicts. In the event of any conflict between this DPA and any privacy-related provisions in the Agreement, the terms of this DPA shall prevail.

ANNEX A: DETAILS OF THE PROCESSING

Description of Customer:

The entity identified as “Client” in Agreement. The Client (acting for and on behalf of a Client and/or in its capacity as a Client) shall be transferring Personal Data to Kigo in connection with the Services (described below).

Nature of Services provided by Kigo:

Kigo provides property management software solutions and related services (referred to as “Services” in the Agreement) which process Personal Data upon the instruction of the Customer in accordance with the terms of the Agreement.

Type(s) of Personal Data processed:

Kigo may process the following types of Personal Data in connection with the Services:

  • Identification and contact data (name, address, title, contact details),
  • Financial information (credit card details, account details, payment information)
  • Employment details (employer, job title, geographic location, area of responsibility)
  • IT information (IP addresses, usage data, cookies data, location data)

Special categories of data (if applicable): Not applicable.

Categories of Data Subjects:
  • Employees, agents, advisors, freelancers of Client and/or Client (who are natural persons)
  • End-users authorized by Client and/or Client to use the Services
  • Third party residents or tenants of Sites owned by Client
Nature of Processing Operations:

The objective of Processing of Personal Data by Kigo is the performance of the Services pursuant to the Agreement.

ANNEX B: STANDARD CONTRACTUAL CLAUSES

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, Kigo and Client, each a “party”; together “the parties”, HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Background

The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.

Clause 1

Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of “personal data” is expanded to include those data” are added.]

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC” are deleted.]

(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “within the meaning of Directive 95/46/EC” are deleted.]

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

  • (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
  • (ii) any accidental or unauthorised access, and
  • (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

  • (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  • (b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

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