Adalo Terms of Service
Adalo Terms of UseLast updated: January 14, 2021.
Welcome, and thank you for your interest in Apto Labs, Inc., dba Adalo (“Adalo,” “we,” “our,” or “us”). These Terms of Use constitute a legally binding agreement (the “Agreement”) between you and Adalo governing your access to and use of the Adalo website, mobile application, Adalo Material, software, API, products, and services provided by us (collectively, the “Service”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT INCLUDES A JURY TRIAL WAIVER AND CLASS ACTION WAIVER, AND A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE FOR ANY DISPUTES.
By entering into this Agreement, and/or by accessing or using the Service, you expressly acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are accessing and using the Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. This Agreement applies to all visitors, users, and others who access or use the Service (“Users,” “you,” or “your”). We reserve the right, at our sole discretion, to change, modify, add, or remove portions of this Agreement, at any time, by posting changes to this page. Your continued access to or use of the Service after such posting confirms your consent to be bound by this Agreement, as amended. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.
1. Privacy Policy and Additional TermsOur Privacy Policy explains how we collect, use, and share your information, and is hereby incorporated into this Agreement. You agree that your access to and use of the Service is governed by our Privacy Policy.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link from the Service (the “Additional Terms”), such as end user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Service. All Additional Terms are incorporated by reference into, and made a part of, this Agreement.
2. EligibilityTo use the Service you must be, and hereby represent that you are, an individual 16 years or older who can form legally binding contracts. Persons under the age of 16, or any higher minimum age in the jurisdiction where that person resides, are strictly prohibited from accessing or using the Service unless their parent has consented in accordance with applicable law. Additionally, you are prohibited from accessing or using the Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the Service.
3. Accounts and RegistrationTo access and use the Service you must create an account (“Account”) by providing us with information such as your name, contact information, and additional information we may ask you to provide. You must provide accurate, current, and complete information during the registration process and keep your Account information up-to-date at all times. You are responsible for all activity that occurs in association with your Account. We are not liable for any loss or damage caused by your failure to maintain the confidentiality of your Account credentials. You must immediately notify us if you discover or suspect any security breach related to the Service or your Account.
4. Limited License Grant; use of the serviceLicense Grant
Subject to this Agreement, we grant you a limited non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and use the Service (including any documentation generally made available to our Users) to build, host, and manage web and mobile applications (each, an “App”) that may be made available to your customers or other members of the general public (each, an “End User”). In the event you would like us to create your App and any associated content (“Professional Services”), please contact us at the email at the end of this Agreement. Such Professional Services will be performed pursuant to a separate agreement and associated fees.
Our Rights
We reserve the right, but are not obligated, to investigate any violation of this Agreement or misuse of the Service. We may: (i) remove, disable access to, or modify any content or resource that violates this Agreement; and (ii) report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Any such reporting may include disclosing certain User Content, including Account information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Agreement. We may also access and disclose User Content if we believe in good faith that such access or disclosure is reasonably necessary to protect the rights, property, or safety of the Service, us, our employees, directors, officers, partners, or agents, or members of the public.
5. RestrictionsIn addition to any other restrictions set forth in this Agreement, you agree not to engage in, attempt to engage in, or permit or assist others in engaging in, any of the following prohibited activities: (i) use any software, script, code, device, crawler, robot, or other means not provided by us to access the Service; (ii) circumvent, disable, or otherwise interfere with security-related features on the Service; (iii) modify, adapt, translate, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Service; (iv) access or use the Service in any manner that may damage, disable, unduly burden, or impair any part of the Service, or any servers or networks connected to the Service; (v) post information or interact with the Service in in a manner which is fraudulent, libelous, abusive, obscene, profane, harassing, or illegal; (vi) use the Service for any illegal purpose or in violation of any law, statute, rule, permit, ordinance or regulation; (vii) gain or attempt to gain unauthorized access to the Service; (viii) interfere or attempt to interfere with the Service provided to any User or network, including without limitation, via means of submitting a virus to the Service, spamming, crashing, or otherwise; (ix) engage in commercial use or distribution of the Service (other than use of the App for your business purposes), or copy or create any derivative work of the Service; (x) use the Service in any way that infringes or misappropriates any third party’s rights, including intellectual property rights, copyright, patent, trademark, trade secret, or other proprietary rights, or rights of publicity or privacy; and (xi) disclose the results of testing or benchmarking of the Platform.
6. Service AvailabilityWe will use commercially reasonable efforts to make the Service available at all times, except for scheduled downtime and any unavailability caused by events beyond our reasonable control, such as fires, natural disasters, government actions, civil unrest, or Internet service provider failures or delays. We may, without prior notice and at our sole discretion, change the Service, stop providing the Service or certain features of the Service, or create usage limits for the Service. Notwithstanding the foregoing, we will endeavor to take reasonable steps to notify you prior to discontinuing any features or making any other changes to the Service. We will use reasonable efforts to provide support service for the Service in accordance with this Agreement. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. You may contact us at the email address below for support.
7. Apps and ContentAppsYou are responsible for all content and operation of any App, including the actions of End Users. You must include terms on all Apps that are at least as protective of us as the terms herein (“End User Terms”). We may remove any content on the Service or App (or demand Users to remove such content) that we deem violates this Agreement.
User ContentYou are responsible for all text, images, photographs, or other materials provided, created, or uploaded to the Service or Apps that are associated with your Account (“User Content”). User Content includes all content of Apps, the design and workflow of an App, all data generated by or submitted to an App, including information relating to and submitted by End Users (“End User Content”), and any components, templates, and plug-ins (“Components”) created by you for use in your App or the Marketplace (defined below). You represent and warrant that: (i) you have all necessary rights, consents, and permissions to submit to the Service and otherwise disclose, transfer, and use all User Content, including to grant the licenses to User Content herein; and (ii) User Content will not violate any applicable law, rule, or regulation, infringe any third party’s intellectual property, privacy, or publicity right, or cause a breach of any agreement with any third party (including any governmental agencies). By posting, displaying, sharing, or distributing User Content, or allowing End Users to do the foregoing related to End User Content, on or through the Service or the Apps, you grant us, our affiliates, and any applicable Third-Party Services (defined below), a non-exclusive, transferable, perpetual, irrevocable, fully paid license to: (a) use, copy, and prepare derivative works of User Content for the purpose of operating and improving the Service, and providing related services, if applicable; and (b) use the Components offered on the Marketplace for building our own programs or applications, testing, internal business processes, marketing, in our documentation, and any other internal business purpose.
End User TermsEnd User Terms must grant you or the applicable owner or controller of the App the same rights with respect to use, removal, and treatment of End User Content that we have with respect to User Content set forth in this Agreement. You agree that all Apps will conspicuously post a consumer-facing privacy policy that: (i) complies with applicable laws, rules, and regulations, including those related to data privacy; (ii) accurately describes your information collection, use, and disclosure practices in accordance with FTC regulations and any other applicable laws, rules, and regulations; and (iii) indicates that you use third-party service providers in order to make Apps available and that such third-party service providers will have access to and will use such End User Data as provided herein.
Usage DataWe may collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies, including without limitation, information concerning User Content and data derived therefrom that does not specifically identify a User or End User (“Usage Data”). We own all right, title, and interest in and to Usage Data.
DMCAWe operate the Service in compliance with 17 U.S.C. §512 and the Digital Millennium Copyright Act (“DMCA”). It is our policy to respond to any infringement notices and take appropriate actions under the DMCA and other applicable intellectual property laws. The DMCA requires that all notices of alleged copyright infringement must be in writing. When informing us of an alleged copyright infringement, the complaint must do the following: (i) identify the copyrighted work(s) that allegedly has been infringed; (ii) describe the material that is claimed to be infringing and provide sufficient information to permit us to locate that material; (iii) provide your contact information, including an address, telephone number, and email address; (iv) certify or include a statement that the complainant has a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner's agent, or law; (v) certify that the information that you have provided us is accurate; and (vi) include a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner. Before the complainant alleges an infringement, complainant should consult copyright materials to confirm that the use is, in fact, infringing. The United States Copyright Office provides basic information, online, at http://www.copyright.gov/circs/circ01.pdf, which can assist one in determining whether an exception or defense, such as fair use, may apply to the use of your copyrighted work. Where it has been clearly established that a User is a repeat offender, we may, in our sole discretion, terminate such User’s Account. If you believe that your copyrighted work is being infringed on the Service or App, please notify us at the email address at the bottom of this Agreement.
8. Third-Party ServicesYou may have access to certain applications and features provided by third parties through the Service (“Third-Party Services”). Your use of any Third-Party Services is subject to this Agreement and to any third-party terms applicable to such Third-Party Services. If you do not accept the applicable third-party terms, do not use such Third-Party Services. When using Third-Party Services, you are responsible for any information you provide to such third party. We have no responsibility or liability for any Third-Party Services. Providers of Third-Party Services may change or discontinue the functionality or features of their Third-Party Services. Any data or information you allow us to access from a Third-Party Service is deemed User Content for purposes of this Agreement.
9. MarketplaceThe MarketplaceAs part of the Service, we provide a marketplace (the “Marketplace”) that allows Users to offer Components (each, a “Licensor”) to other Users to license (each, a “Licensee”). All transactions made through the Marketplace (each, a “Marketplace Transaction”) are between Licensor and Licensee and Adalo will not be a party to any agreements between Users. We facilitate Marketplace Transactions by supplying the forum for such Marketplace Transactions in exchange for a fee. Payments for any Marketplace Transactions will be processed by our third-party payment processor.
ComponentsUsers may submit Components to the Marketplace through their Account. Components offered on the Marketplace are exclusive to the Marketplace and may not be offered, licensed, or used in any other platform. We will review each submission and may refuse it for any reason whatsoever, including incompatibility with the Service or inappropriate content. We reserve the right, at any time and for any reason, to remove a Component from the Marketplace, even if it was previously approved, and even if the removal of such Component materially diminishes the functionality of Apps using such Component. We will take commercially reasonable steps to work with the applicable Users to mitigate the effect of such removal, but we are not responsible for any claims by Users, End Users, or third parties relating to such removal.
LicenseAll Components on the Marketplace are licensed, not sold. In no event will Licensor incorporate into any Component any “copyleft” or similar computer software under an open source license (including GNU GPL) that would impose any restrictions on Adalo’s or Licensee’s use of any of the Components. Licensor must fully disclose any other open source software or third-party products or services integrated into or dynamically linked to a Component. All restrictions in Section 5 that apply to the Service will also apply to each Licensee’s use of any Component. Licensor and Licensee acknowledge and agree that all Components are licensed by Licensor to Licensee under the following terms:
Licensor hereby grants to Licensee a non-exclusive, transferable license to use, copy, and prepare derivative works of a Component for incorporation into Licensee’s App. Such license will include, without limitation, the rights to use, copy, modify, merge, publish, distribute, and sublicense the Component. THE COMPONENT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. IN NO EVENT SHALL ANY COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES, OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT, OR OTHERWISE, ARISING FROM, OUT OF, OR IN CONNECTION WITH THE COMPONENT.
Licensee’s license to a Component will cease upon termination of Licensee’s access to and use of the Service. Components may be removed by Licensor from the Marketplace at any time. A Licensor’s removal of its Component from the Marketplace will not impact any license to or use of such Component by Adalo or Licensee and no additional payments for such Component (whether in use or not) will be due following such removal.
10. Ownership and Proprietary RightsAdalo MaterialExcept for the limited license granted to you in this Agreement and except for User Content, we retain all right, title, and interest in and to the Service and associated documentation, all data, text, images, logos, software, content, and other information and content available on or through the Service, and any and all enhancements, improvements, developments, derivative works, or other modifications made to or related to the foregoing (“Adalo Material”). The Adalo Material is protected by copyright, trademark, and/or other intellectual property laws and you acknowledge and agree that we retain all right, title, and interest in and to the Adalo Material. Except as expressly stated in this Agreement, you may not sell, transfer, alter, reproduce, distribute, republish, download, display, post, or transmit any Adalo Material, in whole or in part, by any means.
User ContentExcept for the limited licenses granted to us in this Agreement, as between the parties, you retain all right, title, and interest in and to the User Content. At any time you may contact us in order to export User Content.
MarksEach party retains all right, title, and interest in and to their respective trademarks, service marks, logos, name, branding, and equivalent identifiers (“Marks”). You grant us a limited, non-exclusive, non-transferable, sublicensable right to use your Marks on the Service and as otherwise required to fulfill our obligations hereunder, and for attribution as set forth in Section 18, consistent with your trademark guidelines if provided to us. Except for the reproduction of our Marks in order to promote the Service on Apps, you may not use our Marks for any purposes, including in a way that suggests you are endorsed by or associated with us in anyway other than as a customer. All permitted use of a party’s Marks hereunder will inure to the benefit of the owning party.
FeedbackYou acknowledge and agree that any feedback, comments, or suggestions you may provide regarding the Service (“Feedback”) will be the sole and exclusive property of us and you hereby irrevocably assign to us all of your right, title, and interest in and to all Feedback.
11. Fees and PaymentPricing and Payment TermsYour use of the Service is based on a monthly subscription and is subject to certain recurring fees and other fees and charges, as applicable. All fees, including any applicable taxes and transaction fees, are in U.S. Dollars and payable in advance. We are not responsible for any charges or expenses you incur resulting from charges billed by us in accordance with this Agreement. All fees and other payments related to your Account will be made in accordance with the billing terms in effect when such payment is due or funds are received. You must provide us with a valid credit card at the time you create your Account and you will promptly update your Account if there is any change to your payment information. Any recurring fees will automatically renew at the rates then in effect, are automatically charged to your credit card, and will continue until cancelled by you in your Account, or as otherwise cancelled in accordance with this Agreement. We may also charge a fee (such as a revenue percentage or commission) of each End User’s purchase on Apps and each Marketplace Transaction at our sole discretion. The license fee, if any, for Components is determined by the Licensor and we may suspend or withhold payments to Licensor for its breach of this Agreement. We use a third-party payment processor to process payments and you must agree to their terms when entering payment information. By providing your payment information, you agree that we may invoice you for all fees when they become due to us without additional notice or consent. We may add new features for additional fees, or amend fees for existing features, at any time in our sole discretion. Your continued use of the Service after any price change becomes effective constitutes your agreement to pay the new amount.
Trial PeriodAfter registration of an Account, you may be given an initial trial period to use of the Service. You may cancel your Account at any time during the trial. If you do not cancel your Account during the trial period, you will be asked to provide your payment information in order to continue using the Service and will be charged any applicable subscription and other fees immediately at the end of the trial period. You are limited to one trial per person for any twelve (12) month period. Free trial eligibility is determined by us at our sole discretion and we may limit eligibility or duration to prevent free trial abuse. We reserve the right to revoke the free trial and put your Account on hold in the event that we determine that you are not eligible.
No RefundsYou may cancel your Account at any time; however, payments are nonrefundable and there are no refunds or credits for partially used periods or in relation to Marketplace Transactions. Following any cancellation, however, your subscription will be valid until your paid period is complete.
12. DisclaimerTHE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ANY COMPONENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY, ACCURACY, TIMELINESS, QUALITY, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE, OUR SUBSIDIARIES, OUR AFFILIATES, AND OUR THIRD-PARTY LICENSORS DO NOT WARRANT THAT: (I) THE SERVICE OR YOUR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR CORRECT; (II) THE SERVICE OR YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (III) THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, TIMELY, UNINTERRUPTED, OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V)THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT (INCLUDING COMPONENTS ON THE MARKETPLACE) DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED OR OTHERWISE USED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR USE OF THE SERVICE OR ANY COMPONENT.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE (INCLUDING ANY COMPONENT ON THE MARKETPLACE) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
If you live in a state that does not allow for the disclaimer of certain warranties, the disclaimers above may not apply to you.
13. IndemnityYou agree to defend, indemnify, and hold us and our officers, directors, employees, agents, and affiliates (the “Entities”) harmless from any and all third-party claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and litigation expenses), arising out of or relating to: (i) your access to or use of the Service; (ii) all User Content and Apps; (iii) your violation of any portion of this Agreement or any applicable law, rule, or regulation; or (iv) your violation of any third-party right.
14. Limitation of LiabilityTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ENTITIES OR ITS THIRD-PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM THE USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF THE ENTITIES AND ITS THIRD-PARTY LICENSORS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER THEORY, ASSOCIATED WITH ANY CLAIM ARISING OUT OF OR RELATING TO USE OF OR ACCESS TO THE SERVICE FOR ANY REASON WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). IF THE JURISDICTION YOU ARE IN DOES NOT ALLOW FOR THE EXCLUSION OF CERTAIN TYPES OF DAMAGES, THEN SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN CERTAIN CIRCUMSTANCES.
15. Alerts and NotificationsBy entering into this Agreement or using the Service, you agree to receive communications from us, including emails, text messages, alerts, and other electronic communications. Standard message and data rates apply to all messages sent to or received from us. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.
16. Dispute ResolutionPLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time such informal dispute resolution is pursued, then either party may initiate binding arbitration. Except as expressly set forth herein, any dispute, claim, or controversy (each, a “Claim”) arising out of or relating to this Agreement will be settled by binding arbitration administered by the American Arbitration Association (the “AAA”) in accordance with the provisions of its Commercial Consumer Arbitration Rules and the supplementary procedures for consumer related disputes of the AAA, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation, to any Claim that all or any part of this Agreement is void or voidable. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act, 9 U.S.C. § 1, et seq. shall exclusively govern the interpretation and enforcement of any arbitration. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties each acknowledge and agree to waive the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, each party retains the right to bring an individual action in small claims court or the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyright, trademark, trade secret, patent, or other intellectual property right. If any court or arbitrator determines that the foregoing class action waiver is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision herein shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
In addition to the severability provisions set forth above, in the event that any portion of this arbitration provision is deemed illegal or unenforceable, such provision shall be severed and the remainder of this section shall be given full force and effect. Any Claim or cause of action you may have arising out of or relating to this Agreement or the Service must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
17. Term and TerminationThis Agreement commence when you first visit or use any feature of the Service and shall apply to all of your subsequent visits and uses. We may, at our sole discretion, terminate your access to and use of the Service, with or without cause, immediately, and without notice, which may include no longer supporting Apps. We will not be liable to you or any third party for any such termination. Upon any termination, discontinuation, or cancellation of the Service or your access thereto, your right to access or use the Service will immediately terminate. All provisions of this Agreement which by their nature should survive termination shall survive the termination of your access to the Service, including without limitation, provisions regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
18. GeneralExcept as provided in Section 16 above, this Agreement is governed by the laws of the State of California, without regard to conflict of law principles. You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating any dispute. You may not assign or transfer this Agreement or your rights herein, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice or consent. If any portion of this Agreement is held invalid, you agree that such invalidity will not affect the validity of the remaining portions of this Agreement. We may identify you as a customer in standard marketing materials, including the customer page of our website. No waiver by us of any breach or default of this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default. This Agreement represents the complete agreement between the parties regarding the subject matter set forth herein and supersedes all prior agreements and representations between you and us.
19. ContactPlease contact us with any questions regarding this Agreement at [email protected] or at the address below.
Adalo
911 Washington Avenue
Suite 501
St. Louis, MO 63101
Further Information for Users in the European Economic AreaIf you are a user in the European Economic Area, we process your personal data in the United States as data controller and in compliance with the European General Data Protection Regulation (“GDPR”).
We do not collect special categories of personal data as defined in Article 9, GDPR.
Legal Basis for ProcessingWhen we process your personal data, we will only do so for the following reasons:
If you would like to exercise any of your data subject rights under the GDPR, including by withdrawing your consent, please contact us at https://info.adalo.com/submit-a-support-ticket.
You have the right to lodge a complaint regarding our data processing with a supervisory authority. The EU Commission provides a list of supervisory authorities here: https://ec.europa.eu/justice/article-29/structure/data-protection-authorities/index_en.htm.
Automated Decision-makingAdalo does not make any decisions involving the use of automated decision-making or profiling.
Transfer of personal dataOur service providers or other third parties with whom Adalo may share your personal data from time to time, as described above, may be located abroad, and in particular outside the European Economic Area. In such case, Adalo will require them to take, in accordance with applicable legislation, all organizational and technical measures reasonably necessary to ensure an adequate level of protection of your personal data.
Data Processing AddendumThis Data Processing Addendum (”DPA”), forming part of the Adalo Terms of Use (“Principal Agreement”), is made and, by and between Apto Labs, Inc., a Delaware corporation (“Adalo”) and you (the “Customer”). (each a “Party” and together, “Parties”)
WHEREAS
(A) The Customer acts as a Data Controller.
(B) Adalo acts as Data Processor.
(C) The Customer wishes to contract certain Services as set forth in the Principal Agreement, which imply the processing of personal data by the Data Processor. Further details of the Processing are set out in Schedule 1 to this DPA.
(D) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with 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).
(E) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS. Capitalized terms shall have the meaning set forth in this Section 1 or as otherwise defined in other sections of this DPA. If not defined, Capitalized terms shall have the same meaning set forth in the Principal Agreement or the GDPR, as applicable:
1.1. “DPA” means this Data Processing Agreement and all Schedules.
1.2. “Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Customer pursuant to or in connection with the Principal Agreement, including Personal Data provided as Customer Data as defined in the Principal Agreement.
1.3. “Contracted Processor” means Adalo and any Subprocessor.
1.4. “Data Protection Laws” means all data protection legislation and regulations applicable to the processing of the Customer Personal Data under this DPA and the Principal Agreement, including 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 (“GDPR”) and supplementing national legislation, in each case as may be amended, repealed, consolidated, or replaced from time to time.
1.5. “EEA” means the European Economic Area.
1.6. “GDPR” has the meaning set forth in the definition of Data Protection Laws.
1.7. “Data Transfer” means:
(a) a transfer of Customer Personal Data from the Customer to Adalo; or
(b) an onward transfer of Customer Personal Data from Adalo to a Subprocessor.
“Services” means the services the Customer is provided pursuant to the Principal Agreement.
“Subprocessor” means any person appointed by or on behalf of Data Processor to process Customer Personal Data on behalf of the Customer in connection with the DPA.
2. PROCESSING OF CUSTOMER PERSONAL DATA.
2.1. Adalo, as Data Processor:
(a) shall comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
(b) shall not Process Customer Personal Data other than on the relevant Customer’s documented instructions, including the Principal Agreement, unless Adalo reasonably believes that such documented instructions are unlawful or infringe applicable Data Protection Laws. In the case of Adalo believing that the Customer’s documented instructions are unlawful or infringe applicable Data Protection Laws, Adalo shall immediately inform the Customer of such belief.
3. DATA PROCESSOR PERSONNEL. Adalo shall take commercially reasonable steps to ensure that any employee, agent, or contractor of Adalo, who may have access to the Customer Personal Data, are subject to confidentiality undertakings or statutory obligations of confidentiality, ensuring in each case that access is limited to those individuals who need to know or access the relevant Customer Personal Data, as necessary for the purposes of the Principal Agreement.
4. SECURITY. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Adalo shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures listed in Article 32(1) of the GDPR. Adalo’s technical and organizational measures are described in Schedule 3 to this DPA.
5. SUBPROCESSING.
5.1. The Customer generally agrees that Adalo may engage Subprocessors (as well as advisors, contractors, and auditors) to Process Customer Personal Data. The Customer authorizes Adalo to appoint (and permit each Subprocessor appointed in accordance with this Section 5 to appoint) Subprocessors in accordance with this Section 5 and any restrictions in the Principal Agreement.
5.2. Adalo may continue to use those Subprocessors already engaged by Adalo as at the date of this DPA as listed at Schedule 2 to this DPA.
5.3. If Adalo engages a new Subprocessor, Adalo shall inform the Customer of the engagement by sending an email notification to the Customer and the Customer may object to the engagement of such new Subprocessor by notifying Adalo within 7 (seven) days of Adalo’s email, provided that such notification must be on reasonable grounds, directly related to the new Subprocessor’s ability to comply with substantially similar obligations to those set out in this DPA. If the Customer does not object within the specified time period, the engagement of the new Subprocessor shall be deemed accepted by the Customer.
5.4. With respect to each Subprocessor (which, for the purposes of this Section 5.4 includes new Subprocessors engaged in accordance with Section 5.3), Adalo shall ensure that the arrangement between Adalo and the relevant Subprocessor is governed by a written contract including terms that offer at least the same level of protection for Customer Personal data as those set out in this DPA and meet the requirements of Article 28(3) of the GDPR.
6. DATA SUBJECT RIGHTS.
6.1. Taking into account the nature of the Processing, Adalo shall assist the Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2. Adalo shall:
(a) promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
(b) ensure that it does not respond to that request except on the documented instructions of Customer or as required by applicable laws to which Adalo is subject, in which case Adalo shall to the extent permitted by applicable laws inform Customer of that legal requirement before Adalo responds to the request.
7. PERSONAL DATA BREACH AND NOTIFICATION.
7.1. Adalo shall notify Customer without undue delay upon Adalo becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to notify, report, or inform Data Subjects and Supervisory Authorities of the Personal Data Breach under the Data Protection Laws.
7.2. Adalo shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.
8. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION. Adalo shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by Articles 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the processing and information available to, the Contracted Processors.
9. DELETION OR RETURN OF CUSTOMER PERSONAL DATA. Subject to this Section 9, Adalo shall promptly and in any event within 20 days of the date of cessation of any Services involving the processing of Customer Personal Data, delete and procure the deletion of all copies of the Customer Personal Data or return all Customer Personal Data to the Customer, at the Customer’s choice.
10. AUDIT RIGHTS.
10.1. Subject to this Section 10, Adalo shall make available to the Customer on request reasonable information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors. A Customer may only mandate an auditor for the purposes of this Section 10.1 if the auditor is reasonably agreed to by Adalo.
10.2. Information and audit rights of the Customer only arise under Section 10.1 to the extent that the DPA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
10.3. Customer shall give Adalo reasonable advance notice of any audit or inspection to be conducted under Section 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury, or disruption to Adalo’s premises, equipment, personnel, and business while its personnel are on those premises in the course of such an audit or inspection. Adalo need not give access to its premises for the purposes of such an audit or inspection:
(a) to any individual unless he or she produces reasonable evidence of identity and authority;
(b) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer undertaking an audit has given notice to Adalo that this is the case before attendance outside those hours begins;
(c) for the purposes of more than one audit or inspection, in respect of Adalo, in any calendar year, except for any additional audits or inspections which:
(i) Customer reasonably considers necessary because of genuine concerns as to Adalo’s compliance with this DPA; or
(ii) Customer is required to carry out by Data Protection Law, a Supervisory Authority, or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where the Customer has identified its concerns or the relevant requirement or request in its notice to Adalo of the audit or inspection; or
(d) to a third party who is performing the audit on behalf of the Customer, unless such third party auditor executes a confidentiality agreement acceptable to Adalo before the audit.
10.4. Customer shall reimburse Adalo for any time expended for any such on-site audit, if applicable, at Adalo’s then-current professional services rate, which shall be made available to Customer upon request. Before commencement of any such on-site audit; Customer and Adalo shall mutually agree on the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Adalo. Customer shall promptly notify Adalo with information regarding any non-compliance during the course of an audit.
10.5. The Customer must provide Adalo with any audit reports generated in connection with any audit at no charge unless prohibited by applicable law. The Customer may use audit reports only for the purposes of meeting its audit requirements under the Data Protection laws and/or confirming compliance with the requirements of this DPA. The audit reports shall be confidential.
10.6. Nothing in this Section 10 shall require Adalo to breach any confidentiality owed to any of its clients, employees, or Subprocessors.
11. DATA TRANSFER. For those Data Transfers not based on an adequacy decision, as defined in Article 45 of the GDPR, or otherwise subject to appropriate safeguards or a derogation, under Articles 46 and 49 of the GDPR, respectively, the restricted transfers shall be subject to the Standard Contractual Clauses attached hereto as Schedule 4, and Adalo may transfer or authorize the Data Transfer to countries outside the EU and/or the EEA consistent with those Standard Contractual Clauses.
12. MISCELLANEOUS.
Notices. All notices and communications given under this DPA shall be made in accordance with Section 15 of the Principal Agreement.
12.2. Liability and Indemnification. The liability of each party to this DPA, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, shall be subject to the limitations or exclusions of liability set out in Section 14 of the Principal Agreement entitled “Limitation of Liability.” Furthermore, the terms of indemnification by both Parties shall be governed by Section 13 of the Principal Agreement entitled “Indemnity” as appropriate.
12.3. Order of Precedence. In the event of inconsistencies between the provisions of this DPA and any other agreements between the Parties, including the Principal Agreement and agreements entered into or purported to be entered into after the date of this DPA (except where explicitly agreed otherwise in writing, signed on behalf of the parties), the provisions of this DPA shall prevail. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses set forth in Schedule 4, the Standard Contractual Clauses shall prevail.
12.4. Governing Law. Notwithstanding Sections 7 and 9 of the Standard Contractual Clauses, this DPA is governed by the laws of the country or territory stipulated for this purpose in Section 18 of the Principal Agreement.
12.5. Term and Termination. The term of this DPA shall commence on the Effective Date of this DPA and shall be coterminous with the Principal Agreement in accordance with Section 17 of the Principal Agreement.
12.6. Amendment. This DPA is subject to the applicable terms for amendment set forth in the Principal Agreement.
SCHEDULE 1 - DETAILS OF THE PROCESSINGThis Schedule includes certain details of the processing of Customer Personal Data as required by Article 28(3) GDPR. This Schedule also provides details of processing as related to the transfer of Personal Data, as specified in Section 11 of the DPA and Schedule 4 to the DPA.
Subject matter and duration of the processing of Customer Personal DataThe subject matter and duration of the processing of the Customer Personal Data are set out in the Principal Agreement and this DPA.
The nature and purpose of processing of Customer Personal DataAdalo will process Customer Personal Data as necessary to perform the Services under the Principal Agreement, as further specified in the applicable Project Addendum or Statements of Work, and as further instructed by the Customer in the use of the Services.
The types of Customer Personal Data to be processedCustomer may submit Customer Personal Data to Adalo for the provision of 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 the following categories of Personal Data:
SCHEDULE 2 – APPROVED SUBPROCESSORS
Adalo has implemented security measures including, but not limited to:
1. In the software development lifecycle, a code review process for all production code changes, prior to release; code analysis tools to detect security and vulnerability defects; automated and manual vulnerability testing.
2. Encryption of all data sent across public networks except as specifically requested by our users, and use of SSH for replication over public networks.
3. Reliance on Amazon Web Services and Heroku for physical security and physical handling of servers, to which Adalo employees do not have physical access.
4. An annual internal audit that includes identifying and prioritizing security, privacy, legal, and business continuity risks, as well as a review of our business processes and governance, conducted by company executives representing legal, IT security, IT operations and business continuity planning concerns.
5. Security incident response process defining procedures for notifying customers if an incident may have impacted their data.
6. Documented procedures for authenticating customer access.
7. Logical segmentation to ensure customers can only access their own data; there are no scenarios where customers are given general systems access beyond specifically granted access to their data.
8. Procedures governing use of production data, enforced by controls including auditing and technical safeguards; use of production data on a strictly as-needed basis for diagnosing issues as requested by clients; and policies governing the circumstances in which production data can be used in this manner.
9. Company policies in place around handling of employee laptops, including HR termination processes involving revoking all access and collecting all assets within 24 hours.
10. Training for all Adalo employees around their job duties and the security obligations inherent in those roles.
11. Procedures to identify, assess and mitigate any reasonably foreseeable internal and external risks to the security, confidentiality, and/or integrity of systems or files containing Personal Data and evaluate and improve safeguards as necessary.
SCHEDULE 4 – STANDARD CONTRACTUAL CLAUSES (PROCESSORS)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 you, (the data exporter) and Adalo (the data importer) 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.
Clause 1
DefinitionsFor 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;
(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;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 transferThe 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 clause1. 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 sub-processor 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 sub- processor 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 exporterThe 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;
(g) to forward any notification received from the data importer or any sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor 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 importerThe 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) ny 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 sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability1. 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction1. 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 authorities1. 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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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 lawThe Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contractThe 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
Sub-processing1. 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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing 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 sub-processing 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 services1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 sub-processor 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.
Appendix 1
to the Standard Contractual ClausesThis Appendix forms part of the Clauses.
The details of the processing are set out in Schedule 1 of the DPA to which these Clauses are appended.
Appendix 2
to the Standard Contractual ClausesThis Appendix forms part of the Clause.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) are set out in Schedule 3 of the DPA to which the clauses are appended.
Welcome, and thank you for your interest in Apto Labs, Inc., dba Adalo (“Adalo,” “we,” “our,” or “us”). These Terms of Use constitute a legally binding agreement (the “Agreement”) between you and Adalo governing your access to and use of the Adalo website, mobile application, Adalo Material, software, API, products, and services provided by us (collectively, the “Service”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT INCLUDES A JURY TRIAL WAIVER AND CLASS ACTION WAIVER, AND A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE FOR ANY DISPUTES.
By entering into this Agreement, and/or by accessing or using the Service, you expressly acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are accessing and using the Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. This Agreement applies to all visitors, users, and others who access or use the Service (“Users,” “you,” or “your”). We reserve the right, at our sole discretion, to change, modify, add, or remove portions of this Agreement, at any time, by posting changes to this page. Your continued access to or use of the Service after such posting confirms your consent to be bound by this Agreement, as amended. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.
1. Privacy Policy and Additional TermsOur Privacy Policy explains how we collect, use, and share your information, and is hereby incorporated into this Agreement. You agree that your access to and use of the Service is governed by our Privacy Policy.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link from the Service (the “Additional Terms”), such as end user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Service. All Additional Terms are incorporated by reference into, and made a part of, this Agreement.
2. EligibilityTo use the Service you must be, and hereby represent that you are, an individual 16 years or older who can form legally binding contracts. Persons under the age of 16, or any higher minimum age in the jurisdiction where that person resides, are strictly prohibited from accessing or using the Service unless their parent has consented in accordance with applicable law. Additionally, you are prohibited from accessing or using the Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the Service.
3. Accounts and RegistrationTo access and use the Service you must create an account (“Account”) by providing us with information such as your name, contact information, and additional information we may ask you to provide. You must provide accurate, current, and complete information during the registration process and keep your Account information up-to-date at all times. You are responsible for all activity that occurs in association with your Account. We are not liable for any loss or damage caused by your failure to maintain the confidentiality of your Account credentials. You must immediately notify us if you discover or suspect any security breach related to the Service or your Account.
4. Limited License Grant; use of the serviceLicense Grant
Subject to this Agreement, we grant you a limited non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and use the Service (including any documentation generally made available to our Users) to build, host, and manage web and mobile applications (each, an “App”) that may be made available to your customers or other members of the general public (each, an “End User”). In the event you would like us to create your App and any associated content (“Professional Services”), please contact us at the email at the end of this Agreement. Such Professional Services will be performed pursuant to a separate agreement and associated fees.
Our Rights
We reserve the right, but are not obligated, to investigate any violation of this Agreement or misuse of the Service. We may: (i) remove, disable access to, or modify any content or resource that violates this Agreement; and (ii) report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Any such reporting may include disclosing certain User Content, including Account information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Agreement. We may also access and disclose User Content if we believe in good faith that such access or disclosure is reasonably necessary to protect the rights, property, or safety of the Service, us, our employees, directors, officers, partners, or agents, or members of the public.
5. RestrictionsIn addition to any other restrictions set forth in this Agreement, you agree not to engage in, attempt to engage in, or permit or assist others in engaging in, any of the following prohibited activities: (i) use any software, script, code, device, crawler, robot, or other means not provided by us to access the Service; (ii) circumvent, disable, or otherwise interfere with security-related features on the Service; (iii) modify, adapt, translate, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Service; (iv) access or use the Service in any manner that may damage, disable, unduly burden, or impair any part of the Service, or any servers or networks connected to the Service; (v) post information or interact with the Service in in a manner which is fraudulent, libelous, abusive, obscene, profane, harassing, or illegal; (vi) use the Service for any illegal purpose or in violation of any law, statute, rule, permit, ordinance or regulation; (vii) gain or attempt to gain unauthorized access to the Service; (viii) interfere or attempt to interfere with the Service provided to any User or network, including without limitation, via means of submitting a virus to the Service, spamming, crashing, or otherwise; (ix) engage in commercial use or distribution of the Service (other than use of the App for your business purposes), or copy or create any derivative work of the Service; (x) use the Service in any way that infringes or misappropriates any third party’s rights, including intellectual property rights, copyright, patent, trademark, trade secret, or other proprietary rights, or rights of publicity or privacy; and (xi) disclose the results of testing or benchmarking of the Platform.
6. Service AvailabilityWe will use commercially reasonable efforts to make the Service available at all times, except for scheduled downtime and any unavailability caused by events beyond our reasonable control, such as fires, natural disasters, government actions, civil unrest, or Internet service provider failures or delays. We may, without prior notice and at our sole discretion, change the Service, stop providing the Service or certain features of the Service, or create usage limits for the Service. Notwithstanding the foregoing, we will endeavor to take reasonable steps to notify you prior to discontinuing any features or making any other changes to the Service. We will use reasonable efforts to provide support service for the Service in accordance with this Agreement. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. You may contact us at the email address below for support.
7. Apps and ContentAppsYou are responsible for all content and operation of any App, including the actions of End Users. You must include terms on all Apps that are at least as protective of us as the terms herein (“End User Terms”). We may remove any content on the Service or App (or demand Users to remove such content) that we deem violates this Agreement.
User ContentYou are responsible for all text, images, photographs, or other materials provided, created, or uploaded to the Service or Apps that are associated with your Account (“User Content”). User Content includes all content of Apps, the design and workflow of an App, all data generated by or submitted to an App, including information relating to and submitted by End Users (“End User Content”), and any components, templates, and plug-ins (“Components”) created by you for use in your App or the Marketplace (defined below). You represent and warrant that: (i) you have all necessary rights, consents, and permissions to submit to the Service and otherwise disclose, transfer, and use all User Content, including to grant the licenses to User Content herein; and (ii) User Content will not violate any applicable law, rule, or regulation, infringe any third party’s intellectual property, privacy, or publicity right, or cause a breach of any agreement with any third party (including any governmental agencies). By posting, displaying, sharing, or distributing User Content, or allowing End Users to do the foregoing related to End User Content, on or through the Service or the Apps, you grant us, our affiliates, and any applicable Third-Party Services (defined below), a non-exclusive, transferable, perpetual, irrevocable, fully paid license to: (a) use, copy, and prepare derivative works of User Content for the purpose of operating and improving the Service, and providing related services, if applicable; and (b) use the Components offered on the Marketplace for building our own programs or applications, testing, internal business processes, marketing, in our documentation, and any other internal business purpose.
End User TermsEnd User Terms must grant you or the applicable owner or controller of the App the same rights with respect to use, removal, and treatment of End User Content that we have with respect to User Content set forth in this Agreement. You agree that all Apps will conspicuously post a consumer-facing privacy policy that: (i) complies with applicable laws, rules, and regulations, including those related to data privacy; (ii) accurately describes your information collection, use, and disclosure practices in accordance with FTC regulations and any other applicable laws, rules, and regulations; and (iii) indicates that you use third-party service providers in order to make Apps available and that such third-party service providers will have access to and will use such End User Data as provided herein.
Usage DataWe may collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies, including without limitation, information concerning User Content and data derived therefrom that does not specifically identify a User or End User (“Usage Data”). We own all right, title, and interest in and to Usage Data.
DMCAWe operate the Service in compliance with 17 U.S.C. §512 and the Digital Millennium Copyright Act (“DMCA”). It is our policy to respond to any infringement notices and take appropriate actions under the DMCA and other applicable intellectual property laws. The DMCA requires that all notices of alleged copyright infringement must be in writing. When informing us of an alleged copyright infringement, the complaint must do the following: (i) identify the copyrighted work(s) that allegedly has been infringed; (ii) describe the material that is claimed to be infringing and provide sufficient information to permit us to locate that material; (iii) provide your contact information, including an address, telephone number, and email address; (iv) certify or include a statement that the complainant has a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner's agent, or law; (v) certify that the information that you have provided us is accurate; and (vi) include a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner. Before the complainant alleges an infringement, complainant should consult copyright materials to confirm that the use is, in fact, infringing. The United States Copyright Office provides basic information, online, at http://www.copyright.gov/circs/circ01.pdf, which can assist one in determining whether an exception or defense, such as fair use, may apply to the use of your copyrighted work. Where it has been clearly established that a User is a repeat offender, we may, in our sole discretion, terminate such User’s Account. If you believe that your copyrighted work is being infringed on the Service or App, please notify us at the email address at the bottom of this Agreement.
8. Third-Party ServicesYou may have access to certain applications and features provided by third parties through the Service (“Third-Party Services”). Your use of any Third-Party Services is subject to this Agreement and to any third-party terms applicable to such Third-Party Services. If you do not accept the applicable third-party terms, do not use such Third-Party Services. When using Third-Party Services, you are responsible for any information you provide to such third party. We have no responsibility or liability for any Third-Party Services. Providers of Third-Party Services may change or discontinue the functionality or features of their Third-Party Services. Any data or information you allow us to access from a Third-Party Service is deemed User Content for purposes of this Agreement.
9. MarketplaceThe MarketplaceAs part of the Service, we provide a marketplace (the “Marketplace”) that allows Users to offer Components (each, a “Licensor”) to other Users to license (each, a “Licensee”). All transactions made through the Marketplace (each, a “Marketplace Transaction”) are between Licensor and Licensee and Adalo will not be a party to any agreements between Users. We facilitate Marketplace Transactions by supplying the forum for such Marketplace Transactions in exchange for a fee. Payments for any Marketplace Transactions will be processed by our third-party payment processor.
ComponentsUsers may submit Components to the Marketplace through their Account. Components offered on the Marketplace are exclusive to the Marketplace and may not be offered, licensed, or used in any other platform. We will review each submission and may refuse it for any reason whatsoever, including incompatibility with the Service or inappropriate content. We reserve the right, at any time and for any reason, to remove a Component from the Marketplace, even if it was previously approved, and even if the removal of such Component materially diminishes the functionality of Apps using such Component. We will take commercially reasonable steps to work with the applicable Users to mitigate the effect of such removal, but we are not responsible for any claims by Users, End Users, or third parties relating to such removal.
LicenseAll Components on the Marketplace are licensed, not sold. In no event will Licensor incorporate into any Component any “copyleft” or similar computer software under an open source license (including GNU GPL) that would impose any restrictions on Adalo’s or Licensee’s use of any of the Components. Licensor must fully disclose any other open source software or third-party products or services integrated into or dynamically linked to a Component. All restrictions in Section 5 that apply to the Service will also apply to each Licensee’s use of any Component. Licensor and Licensee acknowledge and agree that all Components are licensed by Licensor to Licensee under the following terms:
Licensor hereby grants to Licensee a non-exclusive, transferable license to use, copy, and prepare derivative works of a Component for incorporation into Licensee’s App. Such license will include, without limitation, the rights to use, copy, modify, merge, publish, distribute, and sublicense the Component. THE COMPONENT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. IN NO EVENT SHALL ANY COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES, OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT, OR OTHERWISE, ARISING FROM, OUT OF, OR IN CONNECTION WITH THE COMPONENT.
Licensee’s license to a Component will cease upon termination of Licensee’s access to and use of the Service. Components may be removed by Licensor from the Marketplace at any time. A Licensor’s removal of its Component from the Marketplace will not impact any license to or use of such Component by Adalo or Licensee and no additional payments for such Component (whether in use or not) will be due following such removal.
10. Ownership and Proprietary RightsAdalo MaterialExcept for the limited license granted to you in this Agreement and except for User Content, we retain all right, title, and interest in and to the Service and associated documentation, all data, text, images, logos, software, content, and other information and content available on or through the Service, and any and all enhancements, improvements, developments, derivative works, or other modifications made to or related to the foregoing (“Adalo Material”). The Adalo Material is protected by copyright, trademark, and/or other intellectual property laws and you acknowledge and agree that we retain all right, title, and interest in and to the Adalo Material. Except as expressly stated in this Agreement, you may not sell, transfer, alter, reproduce, distribute, republish, download, display, post, or transmit any Adalo Material, in whole or in part, by any means.
User ContentExcept for the limited licenses granted to us in this Agreement, as between the parties, you retain all right, title, and interest in and to the User Content. At any time you may contact us in order to export User Content.
MarksEach party retains all right, title, and interest in and to their respective trademarks, service marks, logos, name, branding, and equivalent identifiers (“Marks”). You grant us a limited, non-exclusive, non-transferable, sublicensable right to use your Marks on the Service and as otherwise required to fulfill our obligations hereunder, and for attribution as set forth in Section 18, consistent with your trademark guidelines if provided to us. Except for the reproduction of our Marks in order to promote the Service on Apps, you may not use our Marks for any purposes, including in a way that suggests you are endorsed by or associated with us in anyway other than as a customer. All permitted use of a party’s Marks hereunder will inure to the benefit of the owning party.
FeedbackYou acknowledge and agree that any feedback, comments, or suggestions you may provide regarding the Service (“Feedback”) will be the sole and exclusive property of us and you hereby irrevocably assign to us all of your right, title, and interest in and to all Feedback.
11. Fees and PaymentPricing and Payment TermsYour use of the Service is based on a monthly subscription and is subject to certain recurring fees and other fees and charges, as applicable. All fees, including any applicable taxes and transaction fees, are in U.S. Dollars and payable in advance. We are not responsible for any charges or expenses you incur resulting from charges billed by us in accordance with this Agreement. All fees and other payments related to your Account will be made in accordance with the billing terms in effect when such payment is due or funds are received. You must provide us with a valid credit card at the time you create your Account and you will promptly update your Account if there is any change to your payment information. Any recurring fees will automatically renew at the rates then in effect, are automatically charged to your credit card, and will continue until cancelled by you in your Account, or as otherwise cancelled in accordance with this Agreement. We may also charge a fee (such as a revenue percentage or commission) of each End User’s purchase on Apps and each Marketplace Transaction at our sole discretion. The license fee, if any, for Components is determined by the Licensor and we may suspend or withhold payments to Licensor for its breach of this Agreement. We use a third-party payment processor to process payments and you must agree to their terms when entering payment information. By providing your payment information, you agree that we may invoice you for all fees when they become due to us without additional notice or consent. We may add new features for additional fees, or amend fees for existing features, at any time in our sole discretion. Your continued use of the Service after any price change becomes effective constitutes your agreement to pay the new amount.
Trial PeriodAfter registration of an Account, you may be given an initial trial period to use of the Service. You may cancel your Account at any time during the trial. If you do not cancel your Account during the trial period, you will be asked to provide your payment information in order to continue using the Service and will be charged any applicable subscription and other fees immediately at the end of the trial period. You are limited to one trial per person for any twelve (12) month period. Free trial eligibility is determined by us at our sole discretion and we may limit eligibility or duration to prevent free trial abuse. We reserve the right to revoke the free trial and put your Account on hold in the event that we determine that you are not eligible.
No RefundsYou may cancel your Account at any time; however, payments are nonrefundable and there are no refunds or credits for partially used periods or in relation to Marketplace Transactions. Following any cancellation, however, your subscription will be valid until your paid period is complete.
12. DisclaimerTHE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ANY COMPONENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY, ACCURACY, TIMELINESS, QUALITY, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE, OUR SUBSIDIARIES, OUR AFFILIATES, AND OUR THIRD-PARTY LICENSORS DO NOT WARRANT THAT: (I) THE SERVICE OR YOUR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR CORRECT; (II) THE SERVICE OR YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (III) THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, TIMELY, UNINTERRUPTED, OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V)THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT (INCLUDING COMPONENTS ON THE MARKETPLACE) DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED OR OTHERWISE USED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR USE OF THE SERVICE OR ANY COMPONENT.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE (INCLUDING ANY COMPONENT ON THE MARKETPLACE) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
If you live in a state that does not allow for the disclaimer of certain warranties, the disclaimers above may not apply to you.
13. IndemnityYou agree to defend, indemnify, and hold us and our officers, directors, employees, agents, and affiliates (the “Entities”) harmless from any and all third-party claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and litigation expenses), arising out of or relating to: (i) your access to or use of the Service; (ii) all User Content and Apps; (iii) your violation of any portion of this Agreement or any applicable law, rule, or regulation; or (iv) your violation of any third-party right.
14. Limitation of LiabilityTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ENTITIES OR ITS THIRD-PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM THE USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF THE ENTITIES AND ITS THIRD-PARTY LICENSORS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER THEORY, ASSOCIATED WITH ANY CLAIM ARISING OUT OF OR RELATING TO USE OF OR ACCESS TO THE SERVICE FOR ANY REASON WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). IF THE JURISDICTION YOU ARE IN DOES NOT ALLOW FOR THE EXCLUSION OF CERTAIN TYPES OF DAMAGES, THEN SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN CERTAIN CIRCUMSTANCES.
15. Alerts and NotificationsBy entering into this Agreement or using the Service, you agree to receive communications from us, including emails, text messages, alerts, and other electronic communications. Standard message and data rates apply to all messages sent to or received from us. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.
16. Dispute ResolutionPLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time such informal dispute resolution is pursued, then either party may initiate binding arbitration. Except as expressly set forth herein, any dispute, claim, or controversy (each, a “Claim”) arising out of or relating to this Agreement will be settled by binding arbitration administered by the American Arbitration Association (the “AAA”) in accordance with the provisions of its Commercial Consumer Arbitration Rules and the supplementary procedures for consumer related disputes of the AAA, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation, to any Claim that all or any part of this Agreement is void or voidable. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act, 9 U.S.C. § 1, et seq. shall exclusively govern the interpretation and enforcement of any arbitration. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties each acknowledge and agree to waive the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, each party retains the right to bring an individual action in small claims court or the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyright, trademark, trade secret, patent, or other intellectual property right. If any court or arbitrator determines that the foregoing class action waiver is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision herein shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
In addition to the severability provisions set forth above, in the event that any portion of this arbitration provision is deemed illegal or unenforceable, such provision shall be severed and the remainder of this section shall be given full force and effect. Any Claim or cause of action you may have arising out of or relating to this Agreement or the Service must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
17. Term and TerminationThis Agreement commence when you first visit or use any feature of the Service and shall apply to all of your subsequent visits and uses. We may, at our sole discretion, terminate your access to and use of the Service, with or without cause, immediately, and without notice, which may include no longer supporting Apps. We will not be liable to you or any third party for any such termination. Upon any termination, discontinuation, or cancellation of the Service or your access thereto, your right to access or use the Service will immediately terminate. All provisions of this Agreement which by their nature should survive termination shall survive the termination of your access to the Service, including without limitation, provisions regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
18. GeneralExcept as provided in Section 16 above, this Agreement is governed by the laws of the State of California, without regard to conflict of law principles. You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating any dispute. You may not assign or transfer this Agreement or your rights herein, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice or consent. If any portion of this Agreement is held invalid, you agree that such invalidity will not affect the validity of the remaining portions of this Agreement. We may identify you as a customer in standard marketing materials, including the customer page of our website. No waiver by us of any breach or default of this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default. This Agreement represents the complete agreement between the parties regarding the subject matter set forth herein and supersedes all prior agreements and representations between you and us.
19. ContactPlease contact us with any questions regarding this Agreement at [email protected] or at the address below.
Adalo
911 Washington Avenue
Suite 501
St. Louis, MO 63101
Further Information for Users in the European Economic AreaIf you are a user in the European Economic Area, we process your personal data in the United States as data controller and in compliance with the European General Data Protection Regulation (“GDPR”).
We do not collect special categories of personal data as defined in Article 9, GDPR.
Legal Basis for ProcessingWhen we process your personal data, we will only do so for the following reasons:
- As necessary to perform our responsibilities under our agreement with you (including to provide the Service);
- When we have a legitimate interest in processing your personal data, including to communicate with you about changes to our Service, to help secure and improve our Service, to analyze use of our Service, and additional purposes outlined in Section 2 of this Policy;
- As necessary to comply with our legal obligations; and
- When you have provided us with your consent to do so.
- access personal data we hold about you;
- request rectification or erasure of your personal data;
- request the restriction the of processing of your personal data;
- object to the processing of your personal data; and
- data portability.
If you would like to exercise any of your data subject rights under the GDPR, including by withdrawing your consent, please contact us at https://info.adalo.com/submit-a-support-ticket.
You have the right to lodge a complaint regarding our data processing with a supervisory authority. The EU Commission provides a list of supervisory authorities here: https://ec.europa.eu/justice/article-29/structure/data-protection-authorities/index_en.htm.
Automated Decision-makingAdalo does not make any decisions involving the use of automated decision-making or profiling.
Transfer of personal dataOur service providers or other third parties with whom Adalo may share your personal data from time to time, as described above, may be located abroad, and in particular outside the European Economic Area. In such case, Adalo will require them to take, in accordance with applicable legislation, all organizational and technical measures reasonably necessary to ensure an adequate level of protection of your personal data.
Data Processing AddendumThis Data Processing Addendum (”DPA”), forming part of the Adalo Terms of Use (“Principal Agreement”), is made and, by and between Apto Labs, Inc., a Delaware corporation (“Adalo”) and you (the “Customer”). (each a “Party” and together, “Parties”)
WHEREAS
(A) The Customer acts as a Data Controller.
(B) Adalo acts as Data Processor.
(C) The Customer wishes to contract certain Services as set forth in the Principal Agreement, which imply the processing of personal data by the Data Processor. Further details of the Processing are set out in Schedule 1 to this DPA.
(D) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with 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).
(E) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS. Capitalized terms shall have the meaning set forth in this Section 1 or as otherwise defined in other sections of this DPA. If not defined, Capitalized terms shall have the same meaning set forth in the Principal Agreement or the GDPR, as applicable:
1.1. “DPA” means this Data Processing Agreement and all Schedules.
1.2. “Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Customer pursuant to or in connection with the Principal Agreement, including Personal Data provided as Customer Data as defined in the Principal Agreement.
1.3. “Contracted Processor” means Adalo and any Subprocessor.
1.4. “Data Protection Laws” means all data protection legislation and regulations applicable to the processing of the Customer Personal Data under this DPA and the Principal Agreement, including 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 (“GDPR”) and supplementing national legislation, in each case as may be amended, repealed, consolidated, or replaced from time to time.
1.5. “EEA” means the European Economic Area.
1.6. “GDPR” has the meaning set forth in the definition of Data Protection Laws.
1.7. “Data Transfer” means:
(a) a transfer of Customer Personal Data from the Customer to Adalo; or
(b) an onward transfer of Customer Personal Data from Adalo to a Subprocessor.
“Services” means the services the Customer is provided pursuant to the Principal Agreement.
“Subprocessor” means any person appointed by or on behalf of Data Processor to process Customer Personal Data on behalf of the Customer in connection with the DPA.
2. PROCESSING OF CUSTOMER PERSONAL DATA.
2.1. Adalo, as Data Processor:
(a) shall comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
(b) shall not Process Customer Personal Data other than on the relevant Customer’s documented instructions, including the Principal Agreement, unless Adalo reasonably believes that such documented instructions are unlawful or infringe applicable Data Protection Laws. In the case of Adalo believing that the Customer’s documented instructions are unlawful or infringe applicable Data Protection Laws, Adalo shall immediately inform the Customer of such belief.
3. DATA PROCESSOR PERSONNEL. Adalo shall take commercially reasonable steps to ensure that any employee, agent, or contractor of Adalo, who may have access to the Customer Personal Data, are subject to confidentiality undertakings or statutory obligations of confidentiality, ensuring in each case that access is limited to those individuals who need to know or access the relevant Customer Personal Data, as necessary for the purposes of the Principal Agreement.
4. SECURITY. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Adalo shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures listed in Article 32(1) of the GDPR. Adalo’s technical and organizational measures are described in Schedule 3 to this DPA.
5. SUBPROCESSING.
5.1. The Customer generally agrees that Adalo may engage Subprocessors (as well as advisors, contractors, and auditors) to Process Customer Personal Data. The Customer authorizes Adalo to appoint (and permit each Subprocessor appointed in accordance with this Section 5 to appoint) Subprocessors in accordance with this Section 5 and any restrictions in the Principal Agreement.
5.2. Adalo may continue to use those Subprocessors already engaged by Adalo as at the date of this DPA as listed at Schedule 2 to this DPA.
5.3. If Adalo engages a new Subprocessor, Adalo shall inform the Customer of the engagement by sending an email notification to the Customer and the Customer may object to the engagement of such new Subprocessor by notifying Adalo within 7 (seven) days of Adalo’s email, provided that such notification must be on reasonable grounds, directly related to the new Subprocessor’s ability to comply with substantially similar obligations to those set out in this DPA. If the Customer does not object within the specified time period, the engagement of the new Subprocessor shall be deemed accepted by the Customer.
5.4. With respect to each Subprocessor (which, for the purposes of this Section 5.4 includes new Subprocessors engaged in accordance with Section 5.3), Adalo shall ensure that the arrangement between Adalo and the relevant Subprocessor is governed by a written contract including terms that offer at least the same level of protection for Customer Personal data as those set out in this DPA and meet the requirements of Article 28(3) of the GDPR.
6. DATA SUBJECT RIGHTS.
6.1. Taking into account the nature of the Processing, Adalo shall assist the Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2. Adalo shall:
(a) promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
(b) ensure that it does not respond to that request except on the documented instructions of Customer or as required by applicable laws to which Adalo is subject, in which case Adalo shall to the extent permitted by applicable laws inform Customer of that legal requirement before Adalo responds to the request.
7. PERSONAL DATA BREACH AND NOTIFICATION.
7.1. Adalo shall notify Customer without undue delay upon Adalo becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to notify, report, or inform Data Subjects and Supervisory Authorities of the Personal Data Breach under the Data Protection Laws.
7.2. Adalo shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.
8. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION. Adalo shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by Articles 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the processing and information available to, the Contracted Processors.
9. DELETION OR RETURN OF CUSTOMER PERSONAL DATA. Subject to this Section 9, Adalo shall promptly and in any event within 20 days of the date of cessation of any Services involving the processing of Customer Personal Data, delete and procure the deletion of all copies of the Customer Personal Data or return all Customer Personal Data to the Customer, at the Customer’s choice.
10. AUDIT RIGHTS.
10.1. Subject to this Section 10, Adalo shall make available to the Customer on request reasonable information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors. A Customer may only mandate an auditor for the purposes of this Section 10.1 if the auditor is reasonably agreed to by Adalo.
10.2. Information and audit rights of the Customer only arise under Section 10.1 to the extent that the DPA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
10.3. Customer shall give Adalo reasonable advance notice of any audit or inspection to be conducted under Section 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury, or disruption to Adalo’s premises, equipment, personnel, and business while its personnel are on those premises in the course of such an audit or inspection. Adalo need not give access to its premises for the purposes of such an audit or inspection:
(a) to any individual unless he or she produces reasonable evidence of identity and authority;
(b) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer undertaking an audit has given notice to Adalo that this is the case before attendance outside those hours begins;
(c) for the purposes of more than one audit or inspection, in respect of Adalo, in any calendar year, except for any additional audits or inspections which:
(i) Customer reasonably considers necessary because of genuine concerns as to Adalo’s compliance with this DPA; or
(ii) Customer is required to carry out by Data Protection Law, a Supervisory Authority, or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where the Customer has identified its concerns or the relevant requirement or request in its notice to Adalo of the audit or inspection; or
(d) to a third party who is performing the audit on behalf of the Customer, unless such third party auditor executes a confidentiality agreement acceptable to Adalo before the audit.
10.4. Customer shall reimburse Adalo for any time expended for any such on-site audit, if applicable, at Adalo’s then-current professional services rate, which shall be made available to Customer upon request. Before commencement of any such on-site audit; Customer and Adalo shall mutually agree on the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Adalo. Customer shall promptly notify Adalo with information regarding any non-compliance during the course of an audit.
10.5. The Customer must provide Adalo with any audit reports generated in connection with any audit at no charge unless prohibited by applicable law. The Customer may use audit reports only for the purposes of meeting its audit requirements under the Data Protection laws and/or confirming compliance with the requirements of this DPA. The audit reports shall be confidential.
10.6. Nothing in this Section 10 shall require Adalo to breach any confidentiality owed to any of its clients, employees, or Subprocessors.
11. DATA TRANSFER. For those Data Transfers not based on an adequacy decision, as defined in Article 45 of the GDPR, or otherwise subject to appropriate safeguards or a derogation, under Articles 46 and 49 of the GDPR, respectively, the restricted transfers shall be subject to the Standard Contractual Clauses attached hereto as Schedule 4, and Adalo may transfer or authorize the Data Transfer to countries outside the EU and/or the EEA consistent with those Standard Contractual Clauses.
12. MISCELLANEOUS.
Notices. All notices and communications given under this DPA shall be made in accordance with Section 15 of the Principal Agreement.
12.2. Liability and Indemnification. The liability of each party to this DPA, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, shall be subject to the limitations or exclusions of liability set out in Section 14 of the Principal Agreement entitled “Limitation of Liability.” Furthermore, the terms of indemnification by both Parties shall be governed by Section 13 of the Principal Agreement entitled “Indemnity” as appropriate.
12.3. Order of Precedence. In the event of inconsistencies between the provisions of this DPA and any other agreements between the Parties, including the Principal Agreement and agreements entered into or purported to be entered into after the date of this DPA (except where explicitly agreed otherwise in writing, signed on behalf of the parties), the provisions of this DPA shall prevail. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses set forth in Schedule 4, the Standard Contractual Clauses shall prevail.
12.4. Governing Law. Notwithstanding Sections 7 and 9 of the Standard Contractual Clauses, this DPA is governed by the laws of the country or territory stipulated for this purpose in Section 18 of the Principal Agreement.
12.5. Term and Termination. The term of this DPA shall commence on the Effective Date of this DPA and shall be coterminous with the Principal Agreement in accordance with Section 17 of the Principal Agreement.
12.6. Amendment. This DPA is subject to the applicable terms for amendment set forth in the Principal Agreement.
SCHEDULE 1 - DETAILS OF THE PROCESSINGThis Schedule includes certain details of the processing of Customer Personal Data as required by Article 28(3) GDPR. This Schedule also provides details of processing as related to the transfer of Personal Data, as specified in Section 11 of the DPA and Schedule 4 to the DPA.
Subject matter and duration of the processing of Customer Personal DataThe subject matter and duration of the processing of the Customer Personal Data are set out in the Principal Agreement and this DPA.
The nature and purpose of processing of Customer Personal DataAdalo will process Customer Personal Data as necessary to perform the Services under the Principal Agreement, as further specified in the applicable Project Addendum or Statements of Work, and as further instructed by the Customer in the use of the Services.
The types of Customer Personal Data to be processedCustomer may submit Customer Personal Data to Adalo for the provision of 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 the following categories of Personal Data:
- First and last name
- Title
- Position
- Employer
- Client ID
- Physical addresses
- Contact information (company, email, phone, physical business address)
- Prospects, customers, business partners and vendors of Customer (who are natural persons)
- Contact persons of Customer’s prospects, customers, business partners and vendors
- Employees, agents, advisors, freelancers of Customer (who are natural persons)
- Customer’s Users authorized by Customer to use the Services
SCHEDULE 2 – APPROVED SUBPROCESSORS
- Heroku
- Amazon Web Services
- Sentry
- Google Suite
- Slack
- Stripe
- Sendgrid
- Hubspot
- Mixpanel
- Google Analytics
- Imgix
Adalo has implemented security measures including, but not limited to:
1. In the software development lifecycle, a code review process for all production code changes, prior to release; code analysis tools to detect security and vulnerability defects; automated and manual vulnerability testing.
2. Encryption of all data sent across public networks except as specifically requested by our users, and use of SSH for replication over public networks.
3. Reliance on Amazon Web Services and Heroku for physical security and physical handling of servers, to which Adalo employees do not have physical access.
4. An annual internal audit that includes identifying and prioritizing security, privacy, legal, and business continuity risks, as well as a review of our business processes and governance, conducted by company executives representing legal, IT security, IT operations and business continuity planning concerns.
5. Security incident response process defining procedures for notifying customers if an incident may have impacted their data.
6. Documented procedures for authenticating customer access.
7. Logical segmentation to ensure customers can only access their own data; there are no scenarios where customers are given general systems access beyond specifically granted access to their data.
8. Procedures governing use of production data, enforced by controls including auditing and technical safeguards; use of production data on a strictly as-needed basis for diagnosing issues as requested by clients; and policies governing the circumstances in which production data can be used in this manner.
9. Company policies in place around handling of employee laptops, including HR termination processes involving revoking all access and collecting all assets within 24 hours.
10. Training for all Adalo employees around their job duties and the security obligations inherent in those roles.
11. Procedures to identify, assess and mitigate any reasonably foreseeable internal and external risks to the security, confidentiality, and/or integrity of systems or files containing Personal Data and evaluate and improve safeguards as necessary.
SCHEDULE 4 – STANDARD CONTRACTUAL CLAUSES (PROCESSORS)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 you, (the data exporter) and Adalo (the data importer) 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.
Clause 1
DefinitionsFor 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;
(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;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 transferThe 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 clause1. 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 sub-processor 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 sub- processor 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 exporterThe 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;
(g) to forward any notification received from the data importer or any sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor 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 importerThe 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) ny 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 sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability1. 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction1. 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 authorities1. 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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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 lawThe Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contractThe 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
Sub-processing1. 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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing 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 sub-processing 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 services1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 sub-processor 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.
Appendix 1
to the Standard Contractual ClausesThis Appendix forms part of the Clauses.
The details of the processing are set out in Schedule 1 of the DPA to which these Clauses are appended.
Appendix 2
to the Standard Contractual ClausesThis Appendix forms part of the Clause.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) are set out in Schedule 3 of the DPA to which the clauses are appended.
