Diliko Data Protection Agreement

THIS DATA PROCESSING ADDENDUM (“DPA“) FORMS PART OF, AND IS SUBJECT TO, THE DILIKO STANDARD TERMS AND CONDITIONS OR OTHER WRITTEN OR ELECTRONIC TERMS OF SERVICE OR SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) BETWEEN DILIKO, LLC, A DELAWARE CORPORATION WITH ITS HEADQUARTERS LOCATED AT #12110 SUNSET HILLS, SUITE 600, RESTON, VIRGINIA 20190 (“DILIKO”), AND THE ENTITY OR PERSON DEFINED AS ‘CUSTOMER’ THEREUNDER, AND EACH CUSTOMER AFFILIATE THAT IS PARTY TO AN ORDER PURSUANT TO THE AGREEMENT (COLLECTIVELY AND INDIVIDUALLY REFERRED TO HEREIN AS “CUSTOMER”; AND TOGETHER WITH DILIKO, COLLECTIVELY, THE “PARTIES” OR INDIVIDUALLY, A “PARTY”). ALL CAPITALIZED TERMS NOT DEFINED IN THIS DPA SHALL HAVE THE MEANINGS SET FORTH IN THE AGREEMENT.

1. DEFINITIONS.

• 1.1. “ACCOUNT” means Customer’s account in the Service in which Customer stores and processes Customer Content.
• 1.2. “AFFILIATE” means any present or future company that, directly or indirectly, controls, is controlled by or is under common control with a party.
• 1.3. “AUTHORIZED AFFILIATE” means a Customer Affiliate who has not signed an Order Form pursuant to the Agreement but is either a Data Controller or Data Processor for the Customer Personal Data processed by Diliko pursuant to the Agreement, for so long as such entity remains a Customer Affiliate.
• 1.4. “CUSTOMER CONTENT” has the meaning set forth in the Agreement.
• 1.5. “CUSTOMER PERSONAL DATA” means any Customer Content that is Personal Data.
• 1.6. “DATA CONTROLLER” means an entity that determines the purposes and means of the Processing of Personal Data.
• 1.7. “DATA PROCESSOR” means an entity that Processes Personal Data on behalf of a Data Controller.
• 1.8. “DATA PROTECTION LAWS” means all data protection and privacy laws applicable to the respective party in its role in the Processing of Personal Data under the Agreement, including, where applicable, EU & UK Data Protection Law and State Data Protection Laws.
• 1.9. “DATA SUBJECT” means the identified or identifiable natural person to whom Customer Personal Data relates.
• 1.10. “EU & UK DATA PROTECTION LAW” means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) the GDPR as it forms part of United Kingdom law pursuant to Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act 2018.
• 1.11. “PERSONAL DATA” means any information, including opinions, relating to an identified or identifiable natural person and includes similarly defined terms in Data Protection Laws, including, but not limited to, the definition of “personal information” in the CCPA.
• 1.12. “PROCESSING” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, and “Process”, “Processes” and “Processed” will be interpreted accordingly.
• 1.13. “PURPOSES” means (i) Diliko’s provision of the Diliko Offerings as described in the Agreement, including Processing initiated by Users in their use of the Diliko Offerings; and (ii) further documented, reasonable instructions from Customer agreed upon by the Parties.
• 1.14. “SECURITY INCIDENT” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data.
• 1.15. “SERVICE” has the meaning set forth in the Agreement.
• 1.16. “STATE DATA PROTECTION LAWS” means all U.S. laws applicable to the respective party’s Processing of Personal Data, including the California Consumer Privacy Act of 2018, as amended, including as amended by the California Privacy Rights Act of 2020, and any regulations thereunder (the “CCPA”), the Colorado Privacy Act and any rules thereunder, the Connecticut Act Concerning Personal Data Privacy and Online Monitoring of 2022, the Utah Consumer Privacy Act of 2022, the Virginia Consumer Data Protection Act, the Texas Data Privacy and Security Act (TDPSA) of 2023, the Oregon Consumer Data Privacy Act (OCDPA) of 2023, Montana Consumer Data Privacy Act (MCDPA) of 2023 and other US state privacy laws similar in scope to the foregoing that contemplate similar consumer rights, including but not limited to the following laws Minnesota Consumer Data Privacy Act (MNDPA), for Iowa, an Act relating to Consumer Data Protection (Iowa CDPA); the Delaware Personal Data Privacy Act (DPDPA); the Nebraska Data Privacy Act (NDPA); and New Hampshire’s law, an Act relative to the Expectation of Privacy (NHPA), New Jersey’s law, an Act Concerning Online Services, Consumers, and Personal Data (NJDPA), the Tennessee Information Protection Act (TIPA), the Maryland Online Data Privacy Act (MODPA), the Indiana Consumer Data Protection Act, (Indiana CPDA), and the Kentucky Consumer Data Protection Act (KCDPA), each as and when they become applicable, as amended, and including any rules and regulations promulgated thereunder (“Other US State Privacy Laws”). The foregoing regarding Other US States Privacy Laws excludes privacy laws enacted by any state that are materially different in form or scope.
• 1.17. “SUB-PROCESSOR” means any other Data Processors engaged by Diliko to Process Customer Personal Data.

2. SCOPE AND APPLICABILITY OF THIS DPA.

This DPA applies where and only to the extent that Diliko Processes Customer Personal Data on behalf of Customer as Data Processor in providing the Services.

3. ROLES AND SCOPE OF PROCESSING.

• 3.1. Role of the Parties.As between Diliko and Customer, Diliko shall Process Customer Personal Data only as a Data Processor (or sub-processor) acting on behalf of Customer and, with respect to State Data Protection Laws, as a “Service Provider” as defined therein, in each case regardless of whether Customer acts as a Data Controller or as a Data Processor on behalf of a third-party Data Controller (such third-party, the “THIRD-PARTY CONTROLLER”) with respect to Customer Personal Data. To the extent any Usage Data (as defined in the Agreement) is considered Personal Data under applicable Data Protection Laws, Diliko is the Data Controller of such data and shall Process such data in accordance with the Agreement and applicable Data Protection Laws.
• 3.2. Customer Instructions.Diliko will Process Customer Personal Data only for the Purposes. Customer shall ensure its Processing instructions are lawful and that the Processing of Customer Personal Data in accordance with such instructions will not violate applicable Data Protection Laws. The Parties agree that the Agreement (including this DPA) sets out the exclusive and final instructions to Diliko for all Processing of Customer Personal Data, and (if applicable) include and are consistent with all instructions from Third-Party Controllers. Any additional requested instructions require the prior written agreement of Diliko. Diliko shall promptly notify Customer if, in Diliko’s opinion, such instruction violates EU & UK Data Protection Law. Where applicable, Customer shall be responsible for any communications, notifications, assistance and/or authorizations that may be required in connection with a Third-Party Controller.
• 3.3. Customer Affiliates. Diliko’s obligations set forth in this DPA also extend to Authorized Affiliates, subject to the following conditions:
  • (a) Customer must exclusively communicate any additional Processing instructions requested pursuant to 3.2 directly to Diliko, including instructions from its Authorized Affiliates;
  • (b) Customer shall be responsible for Authorized Affiliates’ compliance with this DPA and all acts and/or omissions by an Authorized Affiliate with respect to Customer’s obligations in this DPA shall be considered the acts and/or omissions of Customer; and
  • (c) Authorized Affiliates shall not bring a claim directly against Diliko. If an Authorized Affiliate seeks to assert a legal demand, action, suit, claim, proceeding or other forms of complaints or proceedings against Diliko (“AUTHORIZED AFFILIATE CLAIM”): (i) Customer must bring such Authorized Affiliate Claim directly against Diliko on behalf of such Authorized Affiliate, unless Data Protection Laws require the Authorized Affiliate be a party to such claim; and (ii) all Authorized Affiliate Claims shall be considered claims made by Customer and shall be subject to any liability restrictions set forth in the Agreement, including, but not limited to, any aggregate limitation of liability.
• 3.4. Processing of Personal Data. Each Party will comply with its respective obligations under Data Protection Laws. Customer agrees (i) it will use the Service in a manner designed to ensure a level of security appropriate to the particular content of the Customer Personal Data, such as pseudonymizing and backing-up Customer Personal Data; and (ii) it has obtained all consents, permissions and/or rights necessary under Data Protection Laws for Diliko to lawfully Process Customer Personal Data for the Purposes, including, without limitation, Customer’s sharing and/or receiving of Customer Personal Data with third-parties via the Service.
• 3.5. Details of Data Processing.

• • (a) Subject Matter: The subject matter of the Processing under this DPA is the Customer Personal Data.
  • (b) Frequency and duration: Notwithstanding expiration or termination of the Agreement, Diliko will Process the Customer Personal Data continuously and until deletion of all Customer Personal Data as described in this DPA.
  • (c) Purpose: Diliko will Process the Customer Personal Data only for the Purposes.
  • (d) Nature of the Processing: Diliko will perform Processing as needed for the Purposes, and to comply with Customer’s Processing instructions as provided in accordance with the Agreement and this DPA.
  • (e) Retention Period. The period for which Customer Personal Data will be retained and the criteria used to determine that period is determined by Customer during the term of the Agreement via Customer’s use and configuration of the Service. Upon termination or expiration of the Agreement, Customer may retrieve or delete Customer Personal Data as described in the Agreement. Any Customer Personal Data not deleted by Customer shall be deleted by Diliko promptly upon the later of (i) expiration or termination of the Agreement and (ii) expiration of any post-termination “retrieval period” described in the Agreement.
  • (f) Categories of Data Subjects: The categories of Data Subjects to which Customer Personal Data relate are determined and controlled by Customer in its sole discretion, and may include, but are not limited to:
  • (g) Prospects, customers, business partners and vendors of Customer (who are natural persons);
    • i. Employees or contact persons of Customer’s prospects, customers, business partners and vendors; and/or
    • ii. Employees, agents, advisors, and freelancers of Customer (who are natural persons).
  • (h) Categories of Personal Data: The types of Customer Personal Data are determined and controlled by Customer in its sole discretion, and may include, but are not limited to
    • i. Identification and contact data (name, address, title, contact details);
    • ii. Financial information (credit card details, account details, payment information);
    • iii. Employment details (employer, job title, geographic location, area of responsibility); and/or
    • iv. IT information (IP addresses, cookies data, location data).

• • (i) Special Categories of Personal Data (if applicable): Subject to any applicable restrictions and/or conditions in the Agreement or Documentation, Customer may also include ‘special categories of personal data’ or similarly sensitive Personal Data (as described or defined in Data Protection Laws) in Customer Personal Data, the extent of which is determined and controlled by Customer in its discretion, and which may include, but is not limited to Customer Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data Processed for the purposes of uniquely identifying a natural person, data concerning health and/or data concerning a natural person’s sex life or sexual orientation.

4. SUB-PROCESSING.

Authorized Sub-Processors. Customer provides Diliko with a general authorization to engage Sub-processors, subject to Section 4.3 (Changes to Sub-processors), as well as Diliko’s current Sub-processors listed at http://www.diliko.ai/sub-processors-list/

• 4.1.  ] as of the effective date of this DPA and members of Diliko.
• 4.2. Sub-processor Obligations. Diliko shall: (i) enter into a written agreement with each Sub-processor imposing data protection obligations no less protective of Customer Personal Data as Diliko’s obligations under this DPA to the extent applicable to the services provided by the Sub-processor; and (ii) remain liable for each Sub-processor’s compliance with the obligations under this DPA. Upon written request, and subject to any confidentiality restrictions, Diliko shall provide Customer all relevant information it reasonably can in connection with its applicable Sub-processor agreements where required to satisfy Customer’s obligations under Data Protection Laws.
• 4.3. Changes to Sub-processors. Diliko shall make available on its Sub-processor Site a mechanism to subscribe to notifications of new Sub-processors. Diliko shall provide such notification both to  (i) email addresses that have subscribed for notifications  on the Sub-processor Site, and (ii) email addresses designated by Customer as ‘privacy notices’ recipients within Service, at least twenty-eight (28) days in advance of allowing the new Sub-processor to Process Customer Personal Data (the “Objection Period”). During the Objection Period, objections (if any) to Diliko’s appointment of the new Sub-processor must be provided to Diliko in writing and based on reasonable grounds. In such event, the Parties will discuss those objections in good faith with a view to achieving resolution. If it can be reasonably demonstrated to Diliko that the new Sub-processor is unable to Process Customer Personal Data in compliance with the terms of this DPA and Diliko cannot provide an alternative Sub-processor, or the Parties are not otherwise able to achieve resolution as provided in the preceding sentence, Customer, as its sole and exclusive remedy, may terminate the Order Form(s) with respect to only those aspects which cannot be provided by Diliko without the use of the new Sub-processor by providing advance written notice to Diliko of such termination. Diliko will refund Customer any prepaid unused fees of such Order Form(s) following the effective date of such termination.

5. SECURITY.

Security Measures. Diliko shall implement and maintain appropriate technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data as described in Diliko’s Data Management Platform Security Policy found at http://www.diliko.ai/data-management-platform-security-policy/ (“Security Addendum”).

• 5.1. Confidentiality of Processing. Diliko shall ensure that any person who is authorized by Diliko to Process Customer Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

• 5.2. No Assessment of Customer Personal Data by Diliko. Diliko shall have no obligation to assess the contents or accuracy of Customer Personal Data, including to identify information subject to any specific legal, regulatory, or other requirement. Customer is responsible for making an independent determination as to whether its use of the Service will meet Customer’s requirements and legal obligations under Data Protection Laws.

6. CUSTOMER AUDIT RIGHTS.

• 6.1. Upon written request and at no additional cost to Customer, Diliko shall provide Customer, and/or its appropriately qualified third-party representative (collectively, the “Auditor”), access to reasonably requested documentation evidencing Diliko’s compliance with its obligations under this DPA in the form of the relevant audits or certifications listed in the Security Addendum.
• 6.2. Customer may also send a written request for an audit of Diliko’s applicable controls, including inspection of its facilities. Following receipt by Diliko of such request, Diliko and Customer shall mutually agree in advance on the details of the audit, including the reasonable start date, scope and duration of, and security and confidentiality controls applicable to, any such audit. Diliko may charge a fee (rates shall be reasonable, taking into account the resources expended by Diliko) for any such audit. The Reports, audit, and any information arising therefrom shall be considered Diliko’s Confidential Information and may only be shared with a third-party (including a Third-Party Controller) with Diliko’s prior written agreement.
• 6.3. Where the Auditor is a third-party, the Auditor may be required to execute a separate confidentiality agreement with Diliko prior to any review of Reports or an audit of Diliko, and Diliko may object in writing to such Auditor, if in Diliko’s reasonable opinion, the Auditor is not suitably qualified or is a direct competitor of Diliko. Any such objection by Diliko will require Customer to either appoint another Auditor or conduct the audit itself. Any expenses incurred by an Auditor in connection with any review of Reports or an audit shall be borne exclusively by the Auditor. For clarity, the exercise of audit rights under a Transfer Mechanism shall be as described in this Section 6 (Customer Audit Rights) and Customer agrees those rights are carried out on behalf of Customer and all relevant Third-Party Controllers, subject to the confidentiality and non-use restrictions of the Agreement.

7. DATA TRANSFERS.

• 7.1. Hosting and Processing Locations. Diliko will only host Customer Personal Data in the region(s) offered by Diliko and selected by Customer on an Order Form or as Customer otherwise configures via the Service (the “Hosting Region”). Customer is solely responsible for the regions from which its Users access the Customer Personal Data, for any transfer or sharing of Customer Personal Data by Customer or its Users and for any subsequent designation of other Hosting Regions (either for the same Account, a different Account, or a separate Service). Once Customer has selected a Hosting Region, Diliko will not Process Customer Personal Data from outside the Hosting Region except as reasonably necessary to provide the Diliko Offerings procured by Customer, or as necessary to comply with the law or binding order of a governmental body.
• 7.2. EU Transfer.
  • 7.2.1. To the extent that Customer acts as a controller of European Personal Data and processes such data outside Europe in a country that does not provide an adequate level of protection for personal data within the meaning of applicable European Data Protection Law, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Customer for the transfer of Personal Data, the standard contractual clauses as approved by the European Commission pursuant to its decision 2021/914 of 4 June 2021 (“SCCs”) shall be incorporated by reference and form an integral part of this DPA with Diliko as the “data exporter” and Customer as the “data importer”. For the purposes of the SCCs: (a) the Module One terms shall apply; (b) Clause 7 shall apply; (c) in Clause 11, the optional language shall be deleted; (d) in Clause 17, Option 1 shall apply and the SCCs shall be governed by the laws of the Republic of Ireland; (e) in Clause 18(b), disputes shall be resolved before the courts of the Republic of Ireland; and (f) in Clause 13(a) and Annex 1.C, the Irish Data Protection Commissioner shall act as competent supervisory authority.
  • 7.2.2. In addition, in relation to European Personal Data that is protected by the UK GDPR, the SCCs shall apply as set out above with the following modifications: (i) the SCCs shall be amended as specified by the International Data Transfer Addendum issued by the Information Commissioner’s Office under s.119(A) of the UK Data Protection Act 2018 (the “UK Addendum”), which shall be incorporated by reference; (ii) Table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting “exporter”; and (iii) any conflict between the SCCs and the UK Addendum shall be resolved in accordance with Section 10 and Section 11 of the UK Addendum. In relation to European Personal Data that is protected by the Swiss DPA, the SCCs shall apply as set out above with the following modifications: (i) references to “Regulation (EU) 2016/679” shall be interpreted as references the Swiss DPA; (ii) references to “EU,” “Union,” and “Member State” shall be replaced with “Switzerland”; (iv) references to the “competent supervisory authority” and “competent courts” shall be interpreted as references to the “Swiss Federal Data Protection and Information Commissioner” and the “competent Swiss courts”; and (v) the SCCs shall be governed by the laws of Switzerland and disputes shall be resolved before the competent Swiss courts.
    

8. SECURITY INCIDENT RESPONSE.

• 8.1. Security Incident Reporting. If Diliko becomes aware of a Security Incident, Diliko shall notify Customer without undue delay, and in any case, where feasible, notify Customer within seventy-two (72) hours after becoming aware. Diliko’s notification shall be sent to the email registered by Customer within the Service for such purposes, and where no such email is registered, Customer acknowledges that the means of notification shall be at Diliko’s reasonable discretion and Diliko’s ability to timely notify shall be negatively impacted. Diliko shall promptly take reasonable steps to contain, investigate, and mitigate any Security Incident.
• 8.2. Security Incident Communications. Diliko shall provide Customer timely information about the Security Incident, including, but not limited to, the nature and consequences of the Security Incident, the measures taken and/or proposed by Diliko to mitigate or contain the Security Incident, the status of Diliko’s investigation, a contact point from which additional information may be obtained, and the categories and approximate number of data records concerned. Notwithstanding the foregoing, Customer acknowledges that because Diliko personnel may not have visibility to the content of Customer Personal Data, it is unlikely Diliko can provide information as to the particular nature of the Customer Personal Data, or where applicable, the identities, number or categories of affected Data Subjects. Communications by or on behalf of Diliko with Customer in connection with a Security Incident shall not be construed as an acknowledgment by Diliko of any fault or liability with respect to the Security Incident.

9. COOPERATION.

• 9.1. Data Subject Requests. Diliko shall promptly notify Customer if Diliko receives a request from a Data Subject that identifies Customer Personal Data or otherwise identifies Customer, including where the Data Subject seeks to exercise any of its rights under applicable Data Protection Laws (collectively, “DATA SUBJECT REQUEST”). The Service provides Customer with a number of controls that Customer may use to assist it in responding to Data Subject Requests and, subject to the next sentence, Customer will be responsible for responding to any such Data Subject Requests. To the extent Customer is unable to access the relevant Customer Personal Data within the Service using such controls or otherwise, Diliko shall (upon Customer’s written request and taking into account the nature of Diliko’s Processing) provide commercially reasonable cooperation to assist Customer in responding to Data Subject Requests.
• 9.2. Data Protection Impact Assessments. Diliko shall provide reasonably requested information regarding the Service to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws, so long as Customer does not otherwise have access to the relevant information.
• 9.3. Government & Law Enforcement Inquiries. If Diliko receives a demand to retain, disclose, or otherwise Process Customer Personal Data from law enforcement or any other government and/or public authority (“GOVERNMENTAL INQUIRY”), then Diliko shall attempt to redirect the Governmental Inquiry to Customer. Customer agrees that Diliko can provide information to such third-party to the extent reasonably necessary to redirect the Governmental Inquiry to Customer. If Diliko cannot redirect the Governmental Inquiry to Customer, then Diliko shall, to the extent legally permitted to do so, provide Customer reasonable notice of the Governmental Inquiry as promptly as feasible under the circumstances to allow Customer to seek a protective order or other appropriate remedy. This section does not diminish Diliko’s obligations under any applicable Transfer Mechanisms with respect to access by public authorities.

10. RELATIONSHIP WITH THE AGREEMENT.

The Parties agree that this DPA shall replace and supersede any existing data processing addendum, attachment, exhibit or standard contractual clauses that Diliko and Customer may have previously entered into in connection with the Service. Diliko may update this DPA from time to time, with such updated version posted to http://www.diliko.ai/data-protection-agreement/, or a successor website designated by Diliko; provided, however, that no such update shall materially diminish the privacy or security of Customer Personal Data.

• 10.1. Except as provided by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict in connection with the Processing of Customer Personal Data. Notwithstanding the foregoing, and solely to the extent applicable to any Customer Personal Data comprised of patient, medical or other protected health information regulated by HIPAA, if there is any conflict between this DPA and a business associate agreement between Customer and Diliko, then the business associate agreement shall prevail solely with respect to such Customer Personal Data.
• 10.2. Notwithstanding anything to the contrary in the Agreement or this DPA, each Party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or relating to this DPA, the Transfer Mechanisms, and any other data protection agreements in connection with the Agreement (if any), shall be subject to any aggregate limitations on liability set out in the Agreement. Without limiting the Parties’ obligations under the Agreement, each Party agrees that any regulatory penalties incurred by one Party (the “Incurring Party”) in relation to the Customer Personal Data that arise as a result of, or in connection with, the other Party’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce the Incurring Party’s liability under the Agreement as if it were liability to the other Party under the Agreement.
• 10.3. In no event shall this DPA benefit or create any right or cause of action on behalf of a third party (including a Third-Party Controller), but without prejudice to the rights or remedies available to Data Subjects under Data Protection Laws or this DPA (including the Transfer Mechanisms).
• 10.4. This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement.