Data Processing and Security Terms
Data Processing and Security Terms
Last modified: May 24, 2018
The customer agreeing to these terms (“Customer”), and AppHarbor Inc. (“AppHarbor”), have entered into an agreement under which AppHarbor has agreed to provide the AppHarbor service (as described at https://appharbor.com/page/services) and related technical support to Customer (as amended from time to time, the "Agreement").
These Data Processing and Security Terms, including their appendices (the “Terms”) will be effective and replace any previously applicable data processing and security terms as from the Terms Effective Date (as defined below).
These Terms reflect the parties’ agreement with respect to the terms governing the processing and security of Customer Data under the Agreement.
2.1 Capitalized terms used but not defined in these Terms have the meanings set out in the Agreement. In these Terms, unless stated otherwise:
- Additional Security Controls means security resources, features, functionality and/or controls that Customer may use at its option and/or as it determines, including the Admin Console and other features and/or functionality of the Services such as encryption, logging and monitoring, identity and access management, security scanning, and firewalls.
- Agreed Liability Cap means the maximum monetary or payment-based amount at which a party’s liability is capped under the Agreement, either per annual period or event giving rise to liability, as applicable.
- Alternative Transfer Solution means a solution, other than the Model Contract Clauses, that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
- Customer Data has the meaning given in the Agreement or, if no such meaning is given, means data provided by or on behalf of Customer or Customer End Users via the Services under the Account.
- Customer End Users has the meaning given in the Agreement or, if not such meaning is given, has the meaning given to “End Users” in the Agreement.
- Customer Personal Data means the personal data contained within the Customer Data.
- Data Incident means a breach of AppHarbor’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by AppHarbor. “Data Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
- EEA means the European Economic Area.
- European Data Protection Legislation means, as applicable: (a) the GDPR; and/or (b) the Federal Data Protection Act of 19 June 1992 (Switzerland).
- GDPR means 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.
- Model Contract Clauses or MCCs mean the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
- Non-European Data Protection Legislation means data protection or privacy legislation other than the European Data Protection Legislation.
- Notification Email Address means the email address(es) designated by Customer in the Admin Console, or in the Order Form or Ordering Document (as applicable), to receive certain notifications from AppHarbor.
- Security Measures has the meaning given in Section 7.1.1 (AppHarbor’s Security Measures).
- Subprocessors means third parties authorized under these Terms to have logical access to and process Customer Data in order to provide parts of the Services.
- Term means the period from the Terms Effective Date until the end of AppHarbor’s provision of the Services, including, if applicable, any period during which provision of the Services may be suspended and any post-termination period during which AppHarbor may continue providing the Services for transitional purposes.
- Terms Effective Date means, as applicable:
- 25 May 2018, if Customer clicked to accept or the parties otherwise agreed to these Terms prior to or on such date; or
- the date on which Customer clicked to accept or the parties otherwise agreed to these Terms, if such date is after 25 May 2018.
2.2 The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in these Terms have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses, in each case irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies.
3. Duration of these Terms
These Terms will take effect on the Terms Effective Date and, notwithstanding expiry of the Term, will remain in effect until, and automatically expire upon, deletion of all Customer Data by AppHarbor as described in these Terms.
4. Scope of Data Protection Legislation
4.1 Application of European Legislation. The parties acknowledge and agree that the European Data Protection Legislation will apply to the processing of Customer Personal Data if, for example:
- the processing is carried out in the context of the activities of an establishment of Customer in the territory of the EEA; and/or
- the Customer Personal Data is personal data relating to data subjects who are in the EEA and the processing relates to the offering to them of goods or services in the EEA or the monitoring of their behaviour in the EEA.
4.2 Application of Non-European Legislation. The parties acknowledge and agree that Non-European Data Protection Legislation may also apply to the processing of Customer Personal Data.
4.3 Application of Terms. Except to the extent these Terms state otherwise, these Terms will apply irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies to the processing of Customer Personal Data.
5. Processing of Data
5.1 Roles and Regulatory Compliance; Authorization.
5.1.1 Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
- the subject matter and details of the processing are described in Appendix 1;
- AppHarbor is a processor of that Customer Personal Data under the European Data Protection Legislation;
- Customer is a controller or processor, as applicable, of that Customer Personal Data under European Data Protection Legislation; and
- each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
5.1.2 Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to AppHarbor that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of AppHarbor as another processor, have been authorized by the relevant controller.
5.1.3 Responsibilities under Non-European Legislation. If Non-European Data Protection Legislation applies to either party’s processing of Customer Personal Data, the parties acknowledge and agree that the relevant party will comply with any obligations applicable to it under that legislation with respect to the processing of that Customer Personal Data.
5.2 Scope of Processing.
5.2.1 Customer’s Instructions. By entering into these Terms, Customer instructs AppHarbor to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as further specified via Customer’s use of the Services (including the Admin Console and other functionality of the Services); (c) as documented in the form of the Agreement, including these Terms; and (d) as further documented in any other written instructions given by Customer and acknowledged by AppHarbor as constituting instructions for purposes of these Terms.
5.2.2 AppHarbor’s Compliance with Instructions. AppHarbor will comply with the instructions described in Section 5.2.1 (Customer’s Instructions) (including with regard to data transfers) unless EU or EU Member State law to which AppHarbor is subject requires other processing of Customer Personal Data by AppHarbor, in which case AppHarbor will inform Customer (unless that law prohibits AppHarbor from doing so on important grounds of public interest) via the Notification Email Address.
6. Data Deletion
6.1 Deletion by Customer. AppHarbor will enable Customer to delete Customer Data during the Term in a manner consistent with the functionality of the Services. If Customer uses the Services to delete any Customer Data during the Term and that Customer Data cannot be recovered by Customer, this use will constitute an instruction to AppHarbor to delete the relevant Customer Data from AppHarbor’s systems in accordance with applicable law. AppHarbor will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.
6.2 Deletion on Termination. On expiry of the Term, Customer instructs AppHarbor to delete all Customer Data (including existing copies) from AppHarbor’s systems in accordance with applicable law. AppHarbor will, after a recovery period of up to 30 days following such expiry, comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage. Without prejudice to Section 9.1 (Access; Rectification; Restricted Processing; Portability), Customer acknowledges and agrees that Customer will be responsible for exporting, before the Term expires, any Customer Data it wishes to retain afterwards.
7. Data Security
7.1 AppHarbor’s Security Measures, Controls and Assistance.
7.1.1 AppHarbor’s Security Measures. AppHarbor will implement and maintain technical and organizational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Appendix 2 (the "Security Measures"). As described in Appendix 2, the Security Measures include measures to encrypt personal data; to help ensure ongoing confidentiality, integrity, availability and resilience of AppHarbor’s systems and services; to help restore timely access to personal data following an incident; and for regular testing of effectiveness. AppHarbor may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.
7.1.2 Security Compliance by AppHarbor Staff. AppHarbor will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Subprocessors to the extent applicable to their scope of performance, including ensuring that all persons authorized to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7.1.3 Additional Security Controls. In addition to the Security Measures, AppHarbor will make the Additional Security Controls available to: (a) allow Customer to take steps to secure Customer Data; and (b) provide Customer with information about securing, accessing and using Customer Data.
7.1.4 AppHarbor’s Security Assistance. Customer agrees that AppHarbor will (taking into account the nature of the processing of Customer Personal Data and the information available to AppHarbor) assist Customer in ensuring compliance with any of Customer’s obligations in respect of security of personal data and personal data breaches, including if applicable Customer’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR, by:
- implementing and maintaining the Security Measures in accordance with Section 7.1.1 (AppHarbor’s Security Measures);
- making the Additional Security Controls available to Customer in accordance with Section 7.1.3 (Additional Security Controls);
- complying with the terms of Section 7.2 (Data Incidents); and
- providing Customer with the information contained in the Agreement including these Terms.
7.2 Data Incidents
7.2.1 Incident Notification. If AppHarbor becomes aware of a Data Incident, AppHarbor will: (a) notify Customer of the Data Incident promptly and without undue delay after becoming aware of the Data Incident; and (b) promptly take reasonable steps to minimize harm and secure Customer Data.
7.2.2 Details of Data Incident. Notifications made pursuant to this section will describe, to the extent possible, details of the Data Incident, including steps taken to mitigate the potential risks and steps AppHarbor recommends Customer take to address the Data Incident.
7.2.3 Delivery of Notification. Notification(s) of any Data Incident(s) will be delivered to the Notification Email Address or, at AppHarbor’s discretion, by direct communication (for example, by phone call or an in-person meeting). Customer is solely responsible for ensuring that the Notification Email Address is current and valid.
7.2.4 No Assessment of Customer Data by AppHarbor. AppHarbor will not assess the contents of Customer Data in order to identify information subject to any specific legal requirements. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Data Incident(s).
7.2.5 No Acknowledgement of Fault by AppHarbor. AppHarbor’s notification of or response to a Data Incident under this Section 7.2 (Data Incidents) will not be construed as an acknowledgement by AppHarbor of any fault or liability with respect to the Data Incident.
7.3 Customer’s Security Responsibilities and Assessment.
7.3.1 Customer’s Security Responsibilities. Customer agrees that, without prejudice to AppHarbor’s obligations under Section 7.1 (AppHarbor’s Security Measures, Controls and Assistance) and Section 7.2 (Data Incidents):
- Customer is solely responsible for its use of the Services, including:
- making appropriate use of the Services and the Additional Security Controls to ensure a level of security appropriate to the risk in respect of the Customer Data;
- securing the account authentication credentials, systems and devices Customer uses to access the Services;
- backing up its Customer Data; and
- AppHarbor has no obligation to protect Customer Data that Customer elects to store or transfer outside of AppHarbor’s and its Subprocessors’ systems (for example, offline or on-premises storage), or to protect Customer Data by implementing or maintaining Additional Security Controls except to the extent Customer has opted to use them.
7.3.2 Customer’s Security Assessment.
- Customer is solely responsible for reviewing and evaluating for itself whether the Services, the Security Measures, the Additional Security Controls and AppHarbor’s commitments under this Section 7 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation and/or Non-European Data Protection Legislation, as applicable.
- Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by AppHarbor as set out in Section 7.1.1 (AppHarbor’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Data.
8. Impact Assessments and Consultations
Customer agrees that AppHarbor will (taking into account the nature of the processing and the information available to AppHarbor) assist Customer in ensuring compliance with any obligations of Customer in respect of data protection impact assessments and prior consultation, including if applicable Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:
- providing the Additional Security Controls in accordance with Section 7.1.3 (Additional Security Controls); and
- providing the information contained in the Agreement including these Terms.
9. Data Subject Rights; Data Export
9.1 Access; Rectification; Restricted Processing; Portability. During the Term, AppHarbor will, in a manner consistent with the functionality of the Services, enable Customer to access, rectify and restrict processing of Customer Data, including via the deletion functionality provided by AppHarbor as described in Section 6.1 (Deletion by Customer), and to export Customer Data.
9.2 Data Subject Requests
9.2.1 Customer’s Responsibility for Requests. During the Term, if AppHarbor receives any request from a data subject in relation to Customer Personal Data, AppHarbor will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Services.
9.2.2 AppHarbor’s Data Subject Request Assistance. Customer agrees that AppHarbor will (taking into account the nature of the processing of Customer Personal Data) assist Customer in fulfilling any obligation to respond to requests by data subjects, including if applicable Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR, by:
- providing the Additional Security Controls in accordance with Section 7.1.3 (Additional Security Controls); and
- complying with the commitments set out in Section 9.1 (Access; Rectification; Restricted Processing; Portability) and Section 9.2.1 (Customer’s Responsibility for Requests).
10. Data Transfers
10.1 Data Storage and Processing Facilities Customer may select where certain Customer Data will be stored (the "Data Location Selection"), and AppHarbor will store it there in accordance with the Service Specific Terms. If a Data Location Selection is not covered by the Service Specific Terms (or a Data Location Selection is not made by Customer in respect of any Customer Data), AppHarbor may, subject to Section 10.2 (Transfers of Data Out of the EEA), store and process the relevant Customer Data anywhere AppHarbor or its Subprocessors maintains facilities.
10.2 Transfers of Data Out of the EEA.
10.2.1 AppHarbor’s Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 10.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), AppHarbor will:
- if requested to do so by Customer, ensure that AppHarbor Inc as the data importer of the Transferred Personal Data enters into Model Contract Clauses with Customer as the data exporter of such data, and that the transfers are made in accordance with such Model Contract Clauses; and/or
- offer an Alternative Transfer Solution, ensure that the transfers are made in accordance with such Alternative Transfer Solution, and make information available to Customer about such Alternative Transfer Solution.
10.2.2 Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that:
- if under the European Data Protection Legislation AppHarbor reasonably requires Customer to enter into Model Contract Clauses in respect of such transfers, Customer will do so; and
- if under the European Data Protection Legislation AppHarbor reasonably requires Customer to use an Alternative Transfer Solution offered by AppHarbor, and reasonably requests that Customer take any action (which may include execution of documents) strictly required to give full effect to such solution, Customer will do so.
10.3 Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA), AppHarbor will, notwithstanding any term to the contrary in the Agreement, ensure that any disclosure of Customer's Confidential Information containing personal data, and any notifications relating to any such disclosures, will be made in accordance with such Model Contract Clauses.
11.1 Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of AppHarbor’s Affiliates as Subprocessors. In addition, Customer generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If Customer has entered into Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting by AppHarbor Inc of the processing of Customer Data if such consent is required under the Model Contract Clauses.
11.2 Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at: https://appharbor.com/page/subprocessors (as may be updated by AppHarbor from time to time in accordance with these Terms).
11.3 Requirements for Subprocessor Engagement. When engaging any Subprocessor, AppHarbor will:
- ensure via a written contract that:
- the Subprocessor only accesses and uses Customer Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement (including these Terms) and any Model Contract Clauses entered into or Alternative Transfer Solution adopted by AppHarbor as described in Section 10.2 (Transfers of Data Out of the EEA); and
- if the GDPR applies to the processing of Customer Personal Data, the data protection obligations set out in Article 28(3) of the GDPR, as described in these Terms, are imposed on the Subprocessor; and
- remain fully liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
11.4 Opportunity to Object to Subprocessor Changes.
- When any new Third Party Subprocessor is engaged during the Term, AppHarbor will, at least 30 days before the new Third Party Subprocessor processes any Customer Data, inform Customer of the engagement (including the name and location of the relevant subprocessor and the activities it will perform) either by sending an email to the Notification Email Address or via the Admin Console.
- Customer may object to any new Third Party Subprocessor by terminating the Agreement immediately upon written notice to AppHarbor, on condition that Customer provides such notice within 90 days of being informed of the engagement of the subprocessor as described in Section 11.4(a). This termination right is Customer’s sole and exclusive remedy if Customer objects to any new Third Party Subprocessor.
13.1 Liability Cap. If Model Contract Clauses have been entered into as described in Section 10.2 (Transfers of Data Out of the EEA), the total combined liability of either party and its Affiliates towards the other party and its Affiliates under or in connection with the Agreement and such Model Contract Clauses combined will be limited to the Agreed Liability Cap for the relevant party, subject to Section 13.2 (Liability Cap Exclusions).
13.2 Liability Cap Exclusions. Nothing in Section 13.1 (Liability Cap) will affect the remaining terms of the Agreement relating to liability (including any specific exclusions from any limitation of liability).
14. Third Party Beneficiary
Notwithstanding anything to the contrary in the Agreement, where AppHarbor Inc is not a party to the Agreement, AppHarbor Inc will be a third party beneficiary of Section 11.1 (Consent to Subprocessor Engagement) and Section 13 (Liability) of these Terms.
15. Effect of These Terms
Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between these Terms and the remaining terms of the Agreement, these Terms will govern.
Appendix 1: Subject Matter and Details of the Data Processing
AppHarbor’s provision of the Services to Customer.
Duration of the Processing
The Term plus the period from the expiry of the Term until deletion of all Customer Data by AppHarbor in accordance with the Terms.
Nature and Purpose of the Processing
AppHarbor will process Customer Personal Data for the purposes of providing the Services to Customer in accordance with the Terms.
Categories of Data
Data relating to individuals provided to AppHarbor via the Services, by (or at the direction of) Customer or by Customer End Users.
Data subjects include the individuals about whom data is provided to AppHarbor via the Services by (or at the direction of) Customer or by Customer End Users.
Appendix 2: Security Measures
As from the Terms Effective Date, AppHarbor will implement and maintain the Security Measures set out in this Appendix 2. AppHarbor may update or modify such Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.
1. Data Center and Network Security
(a) Data Centers.
Infrastructure. AppHarbor uses geographically distributed data centers. AppHarbor stores all production data in physically secure data centers.
Redundancy. Infrastructure systems used by AppHarbor have been designed to eliminate single points of failure and minimize the impact of anticipated environmental risks.
Server Operating Systems. AppHarbor servers use Windows for the application environment. AppHarbor employs a code review process to increase the security of the code used to provide the Services and enhance the security products in production environments.
Businesses Continuity. AppHarbor replicates data over multiple systems to help to protect against accidental destruction or loss. AppHarbor has designed and regularly plans and tests its business continuity planning/disaster recovery programs.
(b) Networks and Transmission.
Data Transmission. Data centers used by AppHarbor are typically connected via high-speed private links to provide secure and fast data transfer between data centers. This is designed to prevent data from being read, copied, altered or removed without authorization during electronic transfer or transport or while being recorded onto data storage media. AppHarbor transfers data via Internet standard protocols.
Incident Response. AppHarbor monitors a variety of communication channels for security incidents, and AppHarbor’s security personnel will react promptly to known incidents.
Encryption Technologies. AppHarbor makes HTTPS encryption (also referred to as SSL or TLS connection) available. AppHarbor servers support ephemeral elliptic curve Diffie-Hellman cryptographic key exchange signed with RSA and ECDSA. These perfect forward secrecy (PFS) methods help protect traffic and minimize the impact of a compromised key, or a cryptographic breakthrough.
2. Access Controls
Access Control and Privilege Management. Customer’s administrators must authenticate themselves via a central authentication system or via a single sign on system in order to administer the Services.
Internal Data Access Processes and Policies – Access Policy. AppHarbor’s internal data access processes and policies are designed to prevent unauthorized persons and/or systems from gaining access to systems used to process personal data. AppHarbor designs its systems to (i) only allow authorized persons to access data they are authorized to access; AppHarbor employs a centralized access management system to control personnel access to production servers, and only provides access to a limited number of authorized personnel. These mechanisms are designed to grant only approved access rights to site hosts, logs, data and configuration information. AppHarbor requires the use of unique user IDs, strong passwords and carefully monitored access lists to minimize the potential for unauthorized account use. The granting or modification of access rights is based on: the authorized personnel’s job responsibilities; job duty requirements necessary to perform authorized tasks; and a need to know basis. The granting or modification of access rights must also be in accordance with AppHarbor’s internal data access policies and training. Approvals are managed by workflow tools that maintain audit records of all changes. Access to systems is logged to create an audit trail for accountability. Where passwords are employed for authentication (e.g., login to workstations), password policies that follow at least industry standard practices are implemented. These standards include restrictions on password reuse and sufficient password strength. For access to extremely sensitive information (e.g. credit card data), AppHarbor uses hardware tokens.
(a) Data Storage and Logging. AppHarbor stores data in a multi-tenant environment. The data and file system architecture are replicated between multiple geographically dispersed data centers. Customer will be given control over specific data sharing policies. Those policies, in accordance with the functionality of the Services, will enable Customer to determine the product sharing settings applicable to Customer End Users for specific purposes. Customer may choose to make use of certain logging capability that AppHarbor may make available via the Services.
4. Personnel Security
AppHarbor personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. AppHarbor conducts reasonably appropriate backgrounds checks to the extent legally permissible and in accordance with applicable local labor law and statutory regulations.
Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, AppHarbor’s confidentiality and privacy policies. Personnel are provided with security training. Personnel handling Customer Data are required to complete additional requirements appropriate to their role (eg., certifications). AppHarbor’s personnel will not process Customer Data without authorization.
5. Subprocessor Security
Before onboarding Subprocessors, AppHarbor conducts an audit of the security and privacy practices of Subprocessors to ensure Subprocessors provide a level of security and privacy appropriate to their access to data and the scope of the services they are engaged to provide. Once AppHarbor has assessed the risks presented by the Subprocessor, then subject to the requirements set out in Section 11.3 (Requirements for Subprocessor Engagement) of these Terms, the Subprocessor is required to enter into appropriate security, confidentiality and privacy contract terms.