Last Updated: May 2, 2020
THIS BAMBOOHR DATA PROCESSING AGREEMENT (the "DPA") is entered into by and between the BambooHR customer agreeing to these terms (“Client”) and Bamboo HR LLC located at 335 South 560 West Lindon UT 84042 ("BambooHR"). BambooHR and Client are collectively referred to as the “Parties” and each a “Party”.
If you are accepting this DPA on behalf of the Client, you represent and warrant that: (a) you are duly authorized to represent Client; and (b) you accept the terms of this DPA on behalf of Client. If Client has previously executed a Data Processing Agreement with BambooHR to comply with EU Data Protection Law (defined below), that Data Processing Agreement will apply to the Parties relationship instead of this DPA unless this DPA is accepted by the client.
A. Client is subject to the EU Data Protection Law and has subscribed to BambooHR’s Terms of Service found at https://www.bamboohr.com/terms-of-service (the "Contract”) for the receipt of certain services from BambooHR as described in the Contract (the “Services”). In delivering the Services under the Contract, BambooHR may process Personal Data controlled by Client.
B. To comply with EU Data Protection Law , Client must ensure the appropriate protection of all data, including Personal Data when Client engages third party vendors. Accordingly, Client's engagement of BambooHR is conditioned upon BambooHR’s agreement to the terms and conditions of this DPA.
1.1 "Applicable Privacy Law(s)" means the relevant data protection and privacy laws and regulations to which Client is subject, including, where applicable, EU Data Protection Law.
1.2 "Authorized Persons" means any person who processes Personal Data on BambooHR's behalf, including BambooHR's employees, officers, partners, principals, contractors, and Subcontractors.
1.3 "EU Data Protection Law" means 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” or "GDPR").
1.4 "Model Clauses" means the standard contractual clauses for Processors as approved by the European Commission and available at http://ec.europa.eu/justice/data-protection/international-transfers/files/clauses_for_personal_data_transfer_processors_c2010-593.doc (as amended or updated from time to time).
1.5 "Personal Data" means any information provided or made available to BambooHR, by or on behalf of Client, in connection with the Services and which relates to an identified or identifiable natural person (“data subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, genetic, mental, economic, cultural or social identity. For the avoidance of doubt, Personal Data includes personally identifiable information.
1.6 "Security Incident" means an accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, or access to, Personal Data.
1.7 "Subcontractor" means any third party engaged by BambooHR to process any Personal Data relating to this DPA and/or the Contract.
1.8 The terms "Controller", "Processor", and "processing", have the meanings given to them in Applicable Privacy Laws. If and to the extent that Applicable Privacy Laws do not define such terms, then the definitions given in EU Data Protection Law will apply.
Role and Scope of Processing
2.1 BambooHR shall process Personal Data under the Contract only as a Processor acting on behalf of Client. BambooHR agrees that it will process Personal Data as described at Annex A.
2.2 BambooHR will at all times process Personal Data only for the purpose of providing the Services to Client under the Contract and in accordance with Client's documented instructions, unless BambooHR is required to process the Personal Data for other purposes by EU Data Protection Law. Where such a requirement is placed on BambooHR, it shall provide prior notice to Client unless the relevant law prohibits giving such notice.
2.3 Each Party shall comply with its obligations under Applicable Privacy Law(s) in respect of any Personal Data it processes under this DPA.
2.4 BambooHR shall promptly notify Client if it makes a determination that it cannot comply with its obligations under this DPA, and in such event, BambooHR shall work with Client and take all reasonable and appropriate steps to stop and remediate (if remediable) any processing until such time as the processing complies with the requirements of this DPA. BambooHR shall immediately cease (and request all Subcontractors to immediately cease) processing Personal Data if Client determines that BambooHR has not or cannot correct any non-compliance in accordance with this Section 2.4 within a reasonable time frame.
3.1 BambooHR shall not subcontract any processing of Personal Data to a Subcontractor without the prior written consent of Client. Notwithstanding the foregoing, Client hereby expressly consents to BambooHR engaging Subcontractors to process Personal Data provided that:
- a) BambooHR provides Client with a list of all Subcontractors engaged to process Personal Data on BambooHR’s behalf (an up-to-date list of which is currently provided at www.bamboohr.com/subcontractors, and shall promptly provide Client with an updated copy of, or link to, the Subcontractor list in the event BambooHR adds or replaces any Subcontractor;
- b) BambooHR provides at least 30 days’ prior written notice to Client of the engagement of any new Subcontractor (including details of the processing and location);
- c) BambooHR imposes the same data protection terms on any Subcontractor it engages as contained in this DPA (including the Model Clauses and/or other data transfer provisions, where applicable); and
- d) BambooHR remains fully liable for any breach of this DPA or the Contract that is caused by an act, error or omission of such Subcontractor.
3.2 If, following receipt of a notice of the engagement of a new Subcontractor in accordance with Section 3.1(b) above, Client objects to the engagement of that Subcontractor on data protection grounds, then either BambooHR will not engage the Subcontractor to process the Personal Data or Client may elect to suspend or terminate the Contract and this DPA pursuant to the terms of the Contract.
Data Access and Security Measures
4.1 BambooHR shall ensure that any Authorized Person is subject to a strict duty of confidentiality (whether a contractual or statutory duty) and that they process the Personal Data only for the purpose of delivering the Services under the Contract(s) to Client.
4.2 BambooHR will implement and maintain all reasonable and appropriate technical and organizational security measures to meet the requirements of EU Data Protection Law, and in particular, to protect against the occurrence of Security Incidents and to preserve the security, integrity and confidentiality of Personal Data ("Security Measures"). Such Security Measures shall take into account industry standards, the costs of implementation, and the nature, scope, context and purposes of the processing, as well as the risk of a Security Incident and potential impact on the rights and freedoms of natural persons. At a minimum, BambooHR agrees to the Security Measures identified in Annex B.
Security Incidents and Breach Notification
5.1 In the event of a Security Incident, BambooHR shall promptly (and in no event later than 48 hours of BambooHR becoming aware of such Security Incident) inform Client and provide written notification of the Security Incident. Such notification shall include (a) a detailed description of the Security Incident, (b) the type of Personal Data that was the subject of the Security Incident and (c) the identity of each affected person (or, where not possible, the approximate number of data subjects and of Personal Data records concerned), (d) a description of the likely consequences of the Security Incident, and (e) a description of the measures taken or proposed to be taken by BambooHR to address the Security Incident, including, where appropriate, measures to mitigate its possible adverse effects. To the extent that any such information is not available at the time of initial notification, BambooHR shall provide prompt updates as such information becomes available.
5.2 Furthermore, in the event of a Security Incident, BambooHR shall:
- a) provide timely information and cooperation as Client may require to fulfill Client's data breach reporting and notification obligations under Applicable Privacy Laws; and
- b) take such measures and actions as are appropriate to remedy or mitigate the effects of the Security Incident and shall keep Client up-to-date about all material developments in connection with the Security Incident.
5.3 The content and provision of any notification, public/regulatory communication or press release concerning the Security Incident (a “Communication”) shall be solely at Client’s discretion, except as otherwise required by applicable laws. If and to the extent BambooHR is referenced by name in any such Communication, BambooHR shall be provided with an opportunity to review and approve the Communication for accuracy, such approval not to be unreasonably withheld.
Security Reports and Inspections
6.1 BambooHR shall maintain records in accordance with ISO 27001, SOC II or other similar Information Security Management System ("ISMS") standards and shall provide Client with copies of relevant ISMS certifications, audit report summaries and/or other documentation reasonably required by Client to verify BambooHR's compliance with this DPA, upon Client’s request.
Cooperation, Assessments and Audits
7.1 BambooHR shall reasonably cooperate with Client to enable Client to respond to any requests, complaints or other communications from data subjects and regulatory or judicial bodies relating to the processing of Personal Data under the Contract, including requests from data subjects seeking to exercise their rights under Applicable Privacy Laws. In the event that any such request, complaint or communication is made directly to BambooHR, BambooHR shall, unless prohibited by applicable law, promptly pass this onto Client and shall not respond to such communication without Client's express authorization.
7.2 If BambooHR receives a subpoena, court order, warrant or other legal demand from a third party (including law enforcement or other public or judicial authorities) seeking the disclosure of Personal Data, BambooHR shall not, unless otherwise required by applicable law or advised by counsel that it is so required by applicable law, disclose any information but shall immediately notify Client in writing of such request, and unless otherwise required by applicable law, reasonably cooperate with Client if it wishes to limit, challenge or protect against such disclosure, to the extent permitted by applicable laws.
7.3 BambooHR shall assist Client in carrying out any privacy impact assessment of the Services as is reasonable in light of the Personal Data that is being processed. BambooHR shall reasonably cooperate with Client to implement such mitigation actions as are reasonably required to address privacy risks identified in any such privacy impact assessment. If Client is not satisfied with BambooHR’s mitigation actions, Client may elect to suspend or terminate the Contract and this DPA pursuant to the terms of the Contract.
7.4 BambooHR shall, upon receipt of written request from Client, make available to Client such information as is reasonably necessary to demonstrate BambooHR’s compliance with the Applicable Privacy Law and permit Client and/or its authorized agents to audit its records to the extent reasonably required in order to confirm that BambooHR is complying with its obligations under this DPA or any Applicable Privacy Law, provided always that any such audit does not involve the review of any third party data and that the records and information accessed in connection with such audit are treated as confidential information by Client. Client shall bear its own costs to conduct such audit. Unless Client’s request for such audit follows a Security Incident, or is otherwise required by Applicable Privacy Law, Client shall not make any such request more than once in any 12 month period.
8.1 BambooHR will at all times provide an adequate level of protection for the Personal Data, wherever processed, in accordance with the requirements of Applicable Privacy Laws.
8.2 BambooHR shall not process or transfer any Personal Data in or to a territory other than the territory in which the Personal Data was first received from Client (nor permit the Personal Data to be so processed or transferred) unless: (i) it has first obtained Client's prior written consent; and (ii) it takes all such measures as are necessary to ensure such processing or transfer is in compliance with Applicable Privacy Laws (including such measures as may be communicated by Client to BambooHR from time to time). For purposes of the foregoing, the EEA (including the United Kingdom and Switzerland) is a territory.
8.3 Client acknowledges and agrees that, for so long as BambooHR has in place a valid Privacy Shield certification or such other subsequent or additional certification or adequacy finding issued by the appropriate EU authorities permitting the transfer of personal data to the United States (and the Privacy Shield or other subsequent or additional certification remains a valid means of legitimizing personal data exports under EU Data Protection Law), and subject to Section 3, BambooHR may transfer Personal Data to the United States without need for Client’s prior written consent.
8.4 To the extent that transfers of Personal Data pursuant to Section 8.3 are not permitted under Applicable Privacy Law(s), the Parties agree that such transfers shall be subject to the Modal Clauses, conditioned on BambooHR complying with (and requiring any Subcontractor to comply with) the Model Clauses, which are incorporated by reference and form an integral part of this DPA. For the purposes of the descriptions in the Model Clauses and only as between BambooHR and Client, BambooHR agrees that it is a "data importer" and Client is the "data exporter" under the Model Clauses (notwithstanding that Client is located outside the EEA). Further, Annexes A and B of this DPA will take the place of Appendixes 1 and 2 of the Model Clauses respectively.
8.5 It is not the intention of either party, nor the effect of this DPA, to contradict or restrict any of the provisions set forth in the Model Clauses. Accordingly, if and to the extent the Model Clauses conflict with any provision of this DPA, the Model Clauses shall prevail. In no event does this DPA restrict or limit the rights of any data subject or of any competent supervisory authority.
Deletion and Return
9.1 Upon Client's request, or upon termination or expiration of this DPA, BambooHR shall destroy or return to Client all Personal Data (including copies) in its possession or control (including any Personal Data processed by its Subcontractors). This requirement shall not apply to the extent that BambooHR is required by any applicable law to retain some or all of the Personal Data, in which event BambooHR shall isolate and protect the Personal Data from any further processing except to the extent required by such law.
10.1 This DPA shall be governed by and construed in accordance with the laws the country where Client has its main establishment in the European Union, EEA, Switzerland or the United Kingdom unless otherwise required by Applicable Privacy Laws.
10.2 All terms of this DPA are hereby incorporated into the Contract. In the event of a conflict between a term in the Contract and a term in this DPA, the term contained in this DPA shall prevail
10.3 The obligations placed upon the BambooHR under this DPA shall survive so long as BambooHR and/or its Subcontractors process Personal Data on behalf of Client.
10.4 This DPA may not be modified except by a subsequent written instrument signed by both parties.
10.5 If any part of this DPA is held unenforceable, the validity of all remaining parts will not be affected.
Details of the Processing
Description of Client’s Activities Relevant to this Agreement:
Client shall be the Controller of the Personal Data it provides to BambooHR to provide the Services as outlined in the Contract.
Nature of Services provided by BambooHR:
BambooHR's services provided to Client under the Contract are the provision and maintenance of human resource information systems software as a service, including the collecting, hosting and processing of data.
Nature of Services provided by BambooHR:
BambooHR's services provided to Client under the Contract are the provision and maintenance of human resource information systems software as a service, including the collecting, hosting and processing of data.
Type(s) of Personal Data processed:
Employees and Candidates
- Personal information (including, but not limited to, name, identification number(s), photograph(s), address, birth date, gender, marital status, number of children, emergency contact, telephone number(s), academic and professional qualifications, CV/resume, employment history, language proficiency, etc.);
- Information in connection with the employee’s job (including, but not limited to, title, grade, location, reporting lines, team affiliation, hire date, working hours, contract details, performance and evaluation data, employee discipline information, work history, benefits and insurance, assets assigned, training, time-off documentation, etc.);
- Payroll related information (including, but not limited to, salary and compensation information, tax and social security information, bank details, pensions, share options, bonuses, other benefits, etc.).
Referees / References
- Contact details: address, telephone number (fixed and mobile), email address, fax number, emergency contact information.
Special categories of data (if applicable):
Health status, disability information.
Categories of Data Subjects:
- Employees - including, past, potential, present and future staff (including volunteers, agents, independent contractors, interns, temporary and casual workers) of Client.
- Candidates – past, potential, present and future candidates of Client who are being considered or have been selected for placement for a role with Client (including candidate information sourced from publicly available sources).
- Referees / References – past, present, potential and future employment referees for a particular candidate of Client.
Nature of Processing Operations:
The objective of Processing of Personal Data is the performance of the Services pursuant to the Contract, detailed above. The duration of processing will be the period during which BambooHR provides the Services to Client in accordance with the Contract.
Description of the technical and organizational security measures implemented by BambooHR in accordance with Section 4.2 of the DPA:
1. Access Control of Processing Areas
BambooHR implements suitable measures in order to prevent unauthorized persons from gaining access to the data processing equipment (namely database and application servers and related hardware) where Personal Data are processed or used. This is accomplished by:
- establishing security areas;
- protection and restriction of access paths;
- data processing equipment and personal computers will be in an enclosed area with restricted access
- establishing access authorizations for employees and third parties, including the respective documentation;
- regulations and restrictions on issuance and use of card-keys;
- all access to the data center where Personal Data are hosted is logged, monitored, and tracked; and
- the data center where Personal Data are hosted is secured by a security alarm system, and other appropriate security measures.
2. Access Control to Data Processing Systems
BambooHR implements suitable measures (including industry standard encryption) to prevent its data processing systems from being used by unauthorized persons. This is accomplished by:
- identification of the terminal and/or the terminal user to the BambooHR’s systems;
- automatic time-out of user terminal if left idle, identification and password required to reopen;
- issuing and safeguarding of identification codes;
- dedication of terminal users, identification characteristics exclusive to specific functions; and
- requirements for passwords (minimum length, use of special characters, etc.); and
- all access to data is logged, monitored, and tracked.
3. Access Control to Use Specific Areas of Data Processing Systems
BambooHR ensures that the persons entitled to use its data processing systems are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that Personal Data cannot be read, copied or modified or removed without authorization. This is accomplished by:
- employee policies and training in respect of each employee’s access rights to Personal Data;
- protecting data against unauthorized access by means of encryption or pseudonymization (as appropriate);
- effective and measured disciplinary action against individuals who access Personal Data without authorization;
- release of data to only authorized persons; and
- policies controlling the retention of back-up copies.
4. Transmission Control
BambooHR implements suitable measures to prevent Personal Data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. This is accomplished by:
- use of firewall and encryption technologies to protect the gateways and pipelines through which the data travels;
- not storing data on mobile storage media or laptops or other mobile devices unless protected with strong encryption at rest; and
- monitoring of the completeness and correctness of the transfer of data via SFTP or SSL (end-to-end check).
5. Input Control
BambooHR implements suitable measures to ensure that it is possible to check and establish whether and by whom Personal Data have been input into data processing systems or removed. This is accomplished by:
- an authorization policy for the input of data into memory, as well as for the reading, alteration and deletion of stored data;
- authentication of Authorized Persons;
- authentication of authorized systems;
- protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data;
- utilization of user codes (industry standard passwords);
- providing that entries to data processing facilities (the rooms housing the computer hardware and related equipment) are capable of being locked;
- automatic log-off of user ID's that have not been used for a substantial period of time;
- proof established within BambooHR’s organization of the input authorization; and
- electronic recording of entries.
6. Job Control
BambooHR implements suitable measures to ensure that, in the case of commissioned processing of Personal Data, the data are processed strictly in accordance with the instructions of the principal. This is accomplished by:
- allowing data exporter the right, upon reasonable notice and during the BambooHR’s usual business hours, to audit, review and inspect BambooHR’s facilities, practices and procedures with respect to commissioned processing of Personal Data.
7. Availability Control
BambooHR implements suitable measures to ensure that Personal Data are protected from accidental destruction or loss, and that BambooHR is able to restore the availability and access to Personal Data in a timely manner in the event of a Security Incident. This is accomplished by:
- infrastructure redundancy;
- policies prohibiting permanent local (work station) storage of data;
- backup is stored off-site and available for restore in case of failure of LAN infrastructure for Database server; and
- disaster recovery and business continuity plans.
8. Separation of Processing for Different Purposes
BambooHR implements suitable measures to ensure that data collected for different purposes can be processed separately. This is accomplished by:
- access to data is separated through application security for the appropriate users;
- modules within the BambooHR’s database separate which data is used for which purpose, i.e. by functionality and function;
- at the database level, data is stored in different normalized tables, separated per module or function they support; and
- interfaces, batch processes and reports are designed for only specific purposes and functions, so data collected for specific purposes is processed separately.
BambooHR regularly tests, assesses and evaluates the effectiveness of the technical and organizational measures it has in place for ensuring the security of its processing of Personal Data.