Data Processing Addendum

Last update: July 2023

This Data Processing Addendum (“Addendum” or “DPA”) is an agreement between Michlol - Services Application Ltd. (“Appgrade" or "Processor") and you or the entity you represent (“Customer” or “Data Controller”). This DPA supplements the Terms of Use executed by Appgrade and Customer (the “Agreement”).

This Addendum shall apply only to the extent Appgrade Processes Personal Data subject to the GDPR/UK GDPR.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalised terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.

In consideration of the mutual obligations set out herein, the parties agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended, and including, this Addendum.

Definitions

  • In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
  • "Applicable Laws" means (a) European Union law or any laws of a member state of the European Union in respect of which Appgrade or Customer is subject to; and (b) any other applicable law in respect of which Appgrade or Customer is subject to;
  • "Customer Personal Data" means any Personal Data which may be processed by Appgrade on behalf of Customer, pursuant to or in connection with the Agreement;
  • "EU" means the European Union;
  • "EEA" means the European Economic Area. The GDPR applies to the European Economic Area (EEA), which includes all EU countries as well as Iceland, Liechtenstein and Norway;
  • "GDPR" means EU General Data Protection Regulation 2016/679;
  • “UK GDPR” means the GDPR as transposed into United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019;
  • “Applicable Data Protection Laws” means all applicable law(s) protecting Personal Data and individuals’ right to privacy with respect to the Processing of Personal Data, including but not limited to the GDPR and the UK GDPR;
  • "SCC" means the applicable model of the standard clauses for the transfer of Personal Data pursuant to the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021D0914&from=EN and as applicable, the UK addendum (“UK Addendum”) to the European Commission's Standard Contractual Clauses for international data transfers available at: https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf
    • .
  • "Services" means Appgrade’s technological solutions services aiming to enhance the effectiveness and efficiency of facilities and property management of organizations, and all as defined in the Agreement;
  • "Restricted Country" means any country which is not (i) a member of the European Economic Area; and (ii) is not deemed adequate by the European Commission pursuant to Applicable Data Protection Laws; and (iii) which the UK Secretary of State has not specified by regulations as provides an adequate level of protection of Personal Data in accordance with Section 17A of the Data Protection Act 2018;
  • "Sub-processor" means any person (excluding an employee of Appgrade or any of its sub-contractors) appointed by or on behalf of Appgrade to Process Personal Data on behalf of Customer in connection with the Agreement;
  • "Supervisory Authority" means (a) an independent public authority which is established by a member state of the European Union pursuant to Article 51 GDPR/UK GDPR; and (b) any similar regulatory authority responsible for the enforcement of Applicable Data Protection Laws; and
    • .
  • "Term" means the term of the Agreement, as defined therein.
  • The terms "Controller", "Processor", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", and "Processing" shall have the same meaning as in the GDPR/UK GDPR, and their cognate terms shall be construed accordingly.

Processing of Customer Personal Data

  • The parties acknowledge that Customer is the Controller and shall comply with the obligations of a Controller under the GDPR and that Appgrade is acting in the capacity of a Processor. In some circumstances, Customer may additionally or alternatively be a Processor, in which case Customer appoints Appgrade as an authorised Sub-processor, which shall not change the obligations of the parties under this Addendum as Appgrade will remain a Processor in any such event. Customer will comply with all obligations applicable to a Controller pursuant to the Applicable Data Protection Laws.
  • Appgrade shall Process Customer Personal Data on the documented instructions of Customer, unless otherwise required by an Applicable Law to which Appgrade is subject. In which case, Appgrade shall notify Customer if, in its opinion, any instruction infringes the GDPR or other Applicable Law, unless that law prohibits such notification. Such notification will not constitute a general obligation on the part of Appgrade to monitor or interpret the laws applicable to Customer, and such notification will not constitute legal advice to Customer.
  • Customer warrants that it has all the necessary rights to provide the Personal Data to Appgrade for the Processing to be performed in relation to the Services, and that one or more lawful bases set forth in the Applicable Data Protection Laws support the lawfulness of the Processing. To the extent required by the Applicable Data Protection Laws, Customer is responsible for ensuring that all necessary privacy notices are provided to Data Subjects, and unless another legal basis set forth in the Applicable Data Protection Laws supports the lawfulness of the processing, that any necessary Data Subject consents to the Processing are obtained, and for ensuring that a record of such consent is maintained. Should such consent be revoked by a Data Subject, Customer is responsible for communicating the fact of such revocation to Appgrade, and Appgrade will act pursuant to Customer's instructions as seems appropriate.
  • Annex 1 to this Addendum sets out certain information as required by Article 28(3) of the GDPR/UK GDPR according to, Personal Data may be processed by Appgrade. Customer warrants it is an accurate reflection of the Processing activities pursuant to this Addendum and the Agreement. The nature of the Processing operations will depend on the scope of the Services and the nature of the Personal Data that Customer provides in its sole discretion, in a manner by which Appgrade finds appropriate to provide the required Services.

Confidentiality

  • Without prejudice to any existing contractual arrangements between the parties, Appgrade shall ensure that any person that it authorises to Process the Personal Data on its behalf, shall be subject to a duty of confidentiality.

Security

  • Taken into account the measures required by Article 32 of the GDPR/UK GDPR, and the state of the art, the costs of implementation and nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural person, Appgrade shall implement appropriate technical and organizational measures to ensure a level of security of the Processing of Personal Data appropriate to the risk. Such measures are detailed under Annex 3 and may be updated by Appgrade from time to time, provided that such updates shall not materially decrease the protection of Personal Data for Data Subjects.
  • Customer acknowledges that the security requirements are constantly changing and that effective security requires frequent evaluation and regular improvements of outdated security measures. Customer will therefore evaluate the measures implemented in accordance with section 4 on an on-going basis in order to maintain compliance with the requirements set forth in this section. The parties will negotiate in good faith, the cost, if any, to implement changes required by specific updated security requirements set forth in Applicable Data Protection Laws or by data protection authorities of competent jurisdiction.

Sub-processing

  • Customer authorises Appgrade to appoint (and permit each Sub-processor to appoint) Sub-processors in accordance with Annex 2 to this Addendum and any restrictions in the Agreement.
  • Appgrade shall notify Customer as soon as reasonably practicable of any intended changes concerning the addition or replacement of any of the Sub-Processors that will Process any Customer Personal Data ("New Sub-Processor"). If, within 14 calendar days of receipt of that notice, Customer notifies Appgrade in writing of any objections made on reasonable grounds, to the proposed appointment of a New Sub-Processor, the parties will endeavour to agree (acting reasonably), without undue delay, the commercially reasonable steps to be taken to ensure that the new Sub-processor is compliant with Article 28(4) of the GDPR.
  • In the absence of a resolution, Appgrade will make commercially reasonable efforts to provide Customer with the same level of Service described in the Agreement, without using the objected Sub-Processor to process Customer Personal Data.
  • Where the Customer reasonably argues, that the risks involved with the sub-processing activities are still unacceptable, in the context of the requirements of the GDPR/UK GDPR and in relation to the appropriate steps, within the requisite time frame, the parties shall promptly seek to resolve the issues. Where the parties are unable to resolve the issues within such time frame, Customer's sole remedy will be to terminate the Agreement.
  • With respect to each Sub-processors, Appgrade shall ensure that the Sub-processor is bound by data protection obligations compatible with those of the Data Processor under this Addendum.

Data Subject Rights

  • Customer shall comply with requests received from Data Subjects to exercise their rights pursuant to Chapter III of the GDPR or Applicable Data Protection Laws, with regard to accessing Customer Personal Data held by Customer.
  • When Customer is unable to perform according to section 6.1, and therefore requires Appgrade's assistance, while taking into account the nature of the Processing, Appgrade shall assist Customer, upon Customer's request and at the Customer's cost, by using appropriate technical and organisational measures, insofar as this is possible to comply with requests to exercise Data Subject rights, under the Applicable Data Protection Laws.

Personal Data Breach

  • When Appgrade becomes aware of an incident that has a material impact on the Processing of Personal Data that is the subject to the Agreement, it shall notify Customer about the incident. Appgrade shall cooperate with Customer and follow Customer's instructions with regard to such incidents, to enable Customer to perform an investigation into the incident, formulate a correct response and take suitable further steps in respect to the incident.
  • The term "incident" used in section 7.1 includes but not limited to:
    • A complaint or request with respect to the exercise of a Data Subject's rights under the Applicable Data Protection Laws.
    • An investigation into or seizure of the Personal Data by government officials, or a specific indication that such an investigation or seizure is imminent.
    • Any unauthorized or accidental access, Processing, deletion, loss or any form of unlawful Processing of Personal Data.
    • Any breach of the security and/or confidentiality as set out in sections 3 and 4 to this Addendum, leading to the unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data, or any indication of such breach having taken place or being about to take place.
    • Where in the opinion of Appgrade, implementing an instruction received from Customer, would violate applicable laws to which Customer or Appgrade are subject.
  • Where the incident is reasonably likely to require a data breach notification by Customer under the Applicable Data Protection Laws, Appgrade will assist Customer with the notification process.
  • Any notifications made by Appgrade to Customer, shall be addressed to the Customer. Such notifications will contain;
    • A description of the nature of the incident, including where possible, the categories and approximate number of Data Subjects concerned and the categories and the proximate number of Personal Data records concerned.
    • The name and contact details of Appgrade's Data Protection Officer or another contact point where more information can be obtained.
    • A description of the likely consequences of the incident.
    • A description of the measures taken or proposed to be taken by Appgrade to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
  • On the basis of such notification, where applicable Customer shall notify the data breach to the competent Supervisory Authority in accordance with Article 33 of the GDPR and communicate such a breach to the Data Subject in accordance with Article 34 of the GDPR.
  • Appgrade shall, at Customer's cost, cooperate with Customer and take the reasonable commercial steps which shall reasonably be instructed by Customer, to assist in the investigation and mitigation of every occurring Personal Data Breach.

Deletion or Return of Customer Personal Data

  • Subject to section 8.3, Customer may in its discretion by written notice to Appgrade within 30 calendar days of the cessation date, require Appgrade to (a) return a complete copy of all Customer Personal Data to the Customer; and (b) delete all other copies of Customer's Personal Data Processed by Processor. Appgrade shall comply with any such written request within 60 calendar days of the cessation date.
  • Appgrade shall notify the relevant Sub-processors, Processing Personal Data on its behalf, of the termination of the Addendum.
  • Appgrade may retain Customer Personal Data to the extent and for such period as required by Applicable Laws.

Audit Rights

  • Subject to section 9.2 and 9.3, Appgrade shall make available to Customer upon a reasonable request, information which is reasonably necessary to demonstrate compliance with Article 28(3) of the GDPR.
  • Where applicable, if Customer is not otherwise satisfied by its audit rights pursuant to the Agreement, Appgrade shall, at the Customer's costs, allow for audits, including inspections, by an auditor mandated by Customer (subject to section ‎9.3 where auditor shall be subject to written confidentiality obligations in relation to such information) in relation to the Processing of the Customer's Personal Data by the Processor, provided that:
    • Customer shall give Appgrade a reasonable notice of any audit or inspection to be conducted; and
    • Customer shall take reasonable steps to ensure (and shall procure that each of its mandated auditors) to minimize disruption to the Processor’s business, in the course of such audit or inspection, while such audits or inspections shall be conducted during normal working hours.
  • Appgrade may object to an auditor mandated by Customer if the auditor is, in Appgrade’s opinion, not suitably qualified or independent, a competitor of Appgrade, or otherwise manifestly unsuitable. In the event of such an objection, Customer shall appoint another auditor or conduct the audit itself.

Transfers

  • Personal Data may be transferred to third party companies and individuals to facilitate the Services, who are located in a country outside of the EEA. To the extent that the provision of Services involves any such transfers of Personal Data, the parties agree that such transfers shall be made subject to the terms of the applicable EU Standard Contractual Clauses (“SCC”) and to the extent applicable the UK Addendum, as approved by the European Commission (as amended, superseded or updated from time to time), and as entered into between Customer and Appgrade, and as incorporated into this Addendum by reference, when the following conditions are met:
    • When such Personal Data is subject to data transfer restrictions under the GDPR/UK GDPR;
    • When such transfer is to a country located outside the EEA/UK which is not recognized by the European Commission as ensuring an adequate level of protection to the Processed Personal Data pursuant to Article 45 of GDPR/UK GDPR; and
    • When such transfer of Personal Data is not otherwise subject to an approved transfer mechanism which provides an adequate level of protection pursuant to GDPR/UK GDPR.
  • In such cases, Customer and Appgrade agree that the incorporation of the SCC into this Addendum shall act as a legally-binding execution of the SCC, provided that if and to the extent there is any conflict between the terms in this Addendum and the terms of the SCC, the terms of the SCC shall prevail with respect to subject matter of the SCC. If the SCC is updated by the EU authorities, and that creates any conflict between the updated SCC and the terms of this Addendum, the terms of the updated SCC prevail, and the parties shall cooperate in good faith to replace the existing SCC with the updated SCC if necessary.
  • Schedule II of the SCCs shall be deemed completed with the information set out in Annex3 to this Addendum.
  • In cases where Customer’s assessment or a court of competent jurisdiction or Supervisory Authority orders finds the SCC to be insufficient to guarantee a lawful transfer, Appgrade shall implement supplementary measures to assure that the transfer shall be lawful under the standards set forth in the GDPR.
  • In addition, Appgrade agrees to implement appropriate safeguards (including but not limited to technical and organizational measures) to transfer Personal Data outside of the EU/EEA if:
    • Customer considers that the parties cannot guarantee an adequate level of data protection as required under the Applicable Data Protection Laws for the transferred Personal Data, while taking into account the circumstances the country to which Personal Data is designated to be transferred to; and
    • Customer notifies Appgrade of such lack of adequate level of data protection.
  • To the extent that Appgrade or Customer are relying on a specific statutory mechanism to normalize international data transfers and that mechanism is subsequently modified, revoked, or held in a court of a competent jurisdiction to be invalid, Appgrade or Customer agree to cooperate in good faith to promptly suspend the transfer or to pursue a suitable alternate mechanism that can lawfully support the transfer.

General Terms

  • Liability and Indemnity

    Customer shall indemnify Appgrade and will hold Appgrade harmless against all claims, losses, damages and expenses incurred by Appgrade arising out of a breach of this Addendum and/or the Applicable Data Protection Laws by Customer.

  • Order of Precedence

    With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Agreement, the provisions of this Addendum shall prevail.

  • Changes in Applicable Data Protection Laws

    If any variation is required to this Addendum as a result of a change in Applicable Data Protection Laws, then either party may provide written notice to the other party of that change of law. The parties shall discuss the change in Applicable Data Protection Laws and negotiate in good faith with a view to agreeing on any necessary variations to this Addendum to address such changes, including any resulting charges.

  • Governing Law and Jurisdiction

    This Addendum is governed by the laws of Israel. Any disputes arising from or in connection with this Addendum, shall be brought exclusively before the competent court of Tel Aviv, Israel.

  • Severance

    Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

ANNEX 1 - DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA

This Annex 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.

Subject Matter and Duration of the Processing of Customer's Personal Data

The subject matter and duration of the Processing of the Customer Personal Data are set out in the Agreement and this Addendum.

The nature and purpose of the Processing of Customer's Personal Data

AppGrade provides technological solutions (“Services”) aiming to enhance the effectiveness and efficiency of Customer’s facilities and property management. The Services include asset management services made available via an innovative app (“Appgrade”) that facilitates communication between Customer, its employees and service providers, as well as serves as a community marketplace. Appgrade’s Services are provided to Customers and in the course of the provision of its Services, Appgrade may receive access to and Process Customer Personal Data.

Special Categories of Personal Data to be Processed [i.e. g racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation]

No special category data is processed by Appgrade.

The Categories of Data Subject to whom the Customer's Personal Data Relates

The categories of data subject are determined by Customer and include mainly contact information of Customer’s employees and personnel or designated contractors who were provided with an authorization to use Appgrade’s Platform.

The Obligations and Rights of Customer and Customer Affiliates

The obligations and rights of Customer are set out in the Agreement and this Addendum.

ANNEX 2 – LIST OF SUB-PROCESSORS

  • Name: Microsoft
    Location: Ireland
    Purpose of Processing: CRM Dynamics 365 online, Azure cloud, and Microsoft Power BI reporting

ANNEX 3 - SECURITY MEASURES

General Security Measures

  • Appgrade shall establish a procedure for allowing access to Personal Data and restriction of such access.
  • Appgrade shall ensure that access to Personal Data is strictly limited to those individuals who "need to know" or need to access the Personal Data and as strictly necessary for the purpose of providing the Service and shall keep record of the persons authorized to access the Personal Data subject of the Agreement.
  • Appgrade shall take all steps reasonably necessary to ensure the reliability of the individuals who may have access to Personal Data and shall ensure that each such individual (i) is informed of the confidential nature of the Personal Data; (ii) has received appropriate training on his/her responsibilities; and (iii) is subject to written confidentiality undertakings and written security protocols.
  • Appgrade shall implement physical measures to ensure that access to the Personal Data is granted only to authorized users.
  • Appgrade shall maintain and implement sufficient and appropriate (based on the type of Personal Data and its sensitivity) environmental, physical and logical security measures with respect to the Personal Data and to Appgrade’s system's infrastructure, data processing system, communication means, terminals, system architecture, hardware and software, in order to prevent penetration and unauthorized access to Customer Personal Data or to Customer’s systems or communication lines between Appgrade and Customer.
  • Appgrade shall list all components (infrastructure and software) used to Process the Personal Data subject to this Agreement, including computer systems, communication equipment, and software. Appgrade shall use such list to continuously monitor such components and identify weaknesses and risks for the purpose of implementing appropriate security measures to mitigate them.
  • Appgrade shall act in accordance with an appropriate written information security policy and working procedures that comply with the security requirements under this Annex. Appgrade shall review its security policies and operating procedures periodically.
  • Appgrade shall implement control mechanism for verifying access to systems containing Personal Data, which shall include, inter alia, the user identity, date and time of access attempt, the system component attempted to be accessed, type and scope of access and if access was granted or denied. Appgrade shall periodically monitor the information from the control mechanism, list issues and irregularities and the measures taken to handle them.
  • Appgrade will perform security risk assessments to critical systems containing Personal Data, at least once every 18 months.
  • Appgrade will not disclose Personal Data through a public communications network or via the internet, without using industry-standard encryption methods.