Last Updated: October 20, 2021
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 Data Protection Law (defined below), that Data Processing Agreement will apply to the Parties relationship instead of this DPA until this DPA is accepted by Client. BambooHR reserves the right to update this DPA from time to time in order to comply with revisions, amendments, or updates to Applicable Privacy Laws (as defined below). Client’s continued use of the Services shall constitute acceptance of any such updates.
A. Client is subject to the 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 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 Laws" means the relevant data protection and privacy laws and regulations to which Client is subject, including, where applicable, 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 "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") and the United Kingdom’s adoption of the GDPR, the Data Protection Act of 2018, as each may be revised and updated from time to time.
1.4 "Model Clauses" means, as applicable:
- i. For transfers between the European Economic Area and the United States: module two of the standard contractual clauses for Processors as approved by the European Commission and available here (as amended or updated from time to time) and found in Annex I, or
- ii. For transfers between the United Kingdom and the United States: the standard contractual clauses found here, also available at https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:039:0005:0018:EN:PDF.
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 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 II.
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 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 Laws 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 in Annex IV), 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, within a reasonable time 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 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 III.
Security Incidents and Breach Notification
5.1 In the event of a Security Incident, BambooHR shall inform Client without undue delay 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;
- 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 in order 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 accordance with Clause 10 and Clause 15 of the Model Clauses. 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 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.
7.3 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 Laws 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 Laws, 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 Laws, 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. Client acknowledges and agrees that, for so long as BambooHR has in place a valid transfer mechanism in place (as outlined in 8.3) permitting the transfer of personal data to the United States, and subject to section 3, BambooHR may transfer Personal Data to the United States without need for Client’s prior written consent.
8.3 To the extent that transfers of Personal Data are not permitted under Applicable Privacy Law(s), the Parties agree that such transfers shall be subject to the Model Clauses, conditioned on BambooHR complying with (and requiring any Subcontractor to comply with) the Model Clauses, which are found in Annex I or the Standard Contractual Clauses applicable to transfers from the United Kingdom 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).
8.4 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, at Client’s election, destroy, and certify such deletion, 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.
STANDARD CONTRACTUAL CLAUSES (EU)
Purpose and scope
a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) for the transfer of personal data to a third country.
b) The Parties:
- i. the natural or legal person(s), public authority, agency, or other body (“entity”) transferring the personal data, as listed in Annex II.A (each a “data exporter”); and
- ii. the entity in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex II.A (each a “data importer”).
have agreed to these standard contractual clauses (“Clauses”).
c) These Clauses apply with respect to the transfer of personal data as specified in Annex II.B.
d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- i. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- ii. Clause 8.1(b), 8.9(a), (c), (d) and (e);
- iii. Clause 9(a), (c), (d) and (e);
- iv. Clause 12(a), (d) and (f);
- v. Clause 13;
- vi. Clause 15.1(c), (d) and (e);
- vii. Clause 16(e);
- viii. Clause 18(a) and (b).
b) Clause 18(a) and (b).
a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex II.B.
Clause 7 - Optional
a) [Intentionally omitted]
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.
a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
a) The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex II.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex III and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex II.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational measures specified in Annex III. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex II.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
- the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
a) The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least five (5) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.
b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex III the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
i. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
ii. refer the dispute to the competent courts within the meaning of Clause 18.
d) The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
a) Each Party shall be liable to the other Party for any damages it causes the other Party by any breach of these Clauses.
b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
a) As applicable:
Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex II.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial cope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex II.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behavior is monitored, are located, as indicated in Annex II.C, shall act as competent supervisory authority.
b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
i. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
ii. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);
iii. any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
i. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
ii. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority, whether requests have been challenged and the outcome of such challenges, etc.).
d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimization
a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
i. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
ii. the data importer is in substantial or persistent breach of these Clauses; or
iii. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the EU member state that Client’s primary office and/or headquarters is located in.
Choice of forum and jurisdiction
a) Any dispute arising from these Clauses shall be resolved by the courts that Client’s primary office and/or headquarters is located in.
b) The Parties agree that those shall be the courts that Client’s primary office and/or headquarters is located in.
c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
d) The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX II – Details of the Processing.
ANNEX III – Supplementary Measures.
ANNEX IV – List of Sub-processors.
Details of the Processing
A. LIST OF PARTIES
Client Name: Name as listed in Client’s account.
Address: Address as listed in Client’s account.
Contact person’s name, position and contact details: Account owner listed in Client’s account.
Activities relevant to the data transferred under these Clauses: Client shall be the Controller of the Personal Data it provides to BambooHR to provide the Services as outlined in the Contract.
Role (controller/processor): Controller
Name: Bamboo HR LLC
Address: 335 South 560 West Lindon, UT 84042
Contact person’s name, position and contact details: Corporate Counsel; [email protected]; 801-724-6600
Activities relevant to the data transferred under these Clauses: 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.
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
- Categories of data subjects whose personal data is transferred:
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.
- Categories of personal data transferred: 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.
- *Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.: Health status, disability information.
- The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): The duration of processing will be the period during which BambooHR provides the Services to Client in accordance with the Contract.
- Nature of the processing: The objective of Processing of Personal Data is the performance of the Services pursuant to the Contract, detailed above.
- Purposes of the data transfer and further processing: The purposes of Processing of Personal Data is the performance of the Services pursuant to the Contract, detailed above.
- The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: The retention periods for personal data will be the period during which BambooHR provides the Services to Client in accordance with the Contract, or as otherwise required under applicable law.
- For transfers to (sub-)processors, also specify subject matter, nature and duration of the processing: The hosting of Personal Data for the performance of the Services provide by BambooHR to the Client pursuant to the Contract and for the duration of the performance of those Services.
C. COMPETENT SUPERVISORY AUTHORITY – The EU member state that Client’s primary office and/or headquarters is located in.
A. TRANSPARENCY OBLIGATIONS:
- BambooHR will publish a periodic report in its Whistic security profile on the access requests it has received from public authorities in the United States. The report will detail the requests received, the data requested, the requesting body, legal basis for disclosure, and whether data was disclosed in response to the request. Clients may gain access to the Whistic security profile by contacting BambooHR support.
- BambooHR commits that it (1) has not purposefully created back doors or similar programming that could be used to access its systems or client data; (2) has not purposefully created or changed its business processes in a manner that facilitates access to client data or systems; and (3) national law or government policy does not require BambooHR to create or maintain back doors or to facilitate access to personal data or systems by public authorities or to hand over its encryption key.
B. CONTRACTUAL OBLIGATIONS: BambooHR will inform a requesting public authority if its order to disclose would be incompatible with the safeguards contained in the SCCs and thus result in conflicting obligations for BambooHR.
C. ORGANIZATIONAL AND SECURITY MEASURES: 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 cardkeys;
- 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.
LIST OF SUB-PROCESSORS
Controller agrees and authorizes processor to use the following sub-processors:
1. Name: Amazon Web Services
Address: 410 Terry Avenue North, Seattle, WA 98109-5210
Contact person’s name, position and contact details: Jonathan Lau; 425-686-4298; [email protected]
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): The hosting of Personal Data for the performance of the Services provided by BambooHR to the Client pursuant to the Contract and for the duration of the performance of those Services.