PRIVACY

GDPR Data Processor Data Protection Addendum

This GDPR Data Processor Data Protection Addendum is entered into by TalentQuest LLC (“Processor”) and TalentQuest Client agreeing to these terms (“Controller”). To the extent that Processor engages in the processing of Personal Data on behalf of Controller in the course of carrying out Processor’s obligations under the Agreement, Processor shall comply with European Union Regulation 2016/679 (the General Data Protection Regulation or “GDPR”), the UK Data Protection Act of 2018 and the Swiss Federal Act on Data Protection, as amended (“Data Protection Laws”) to the extent applicable to Personal Data processed by Processor.  Unless otherwise specified all terms used herein shall have the same meaning as under the applicable Data Protection Laws.

Without limiting the foregoing, the Parties agree:

  1. Processor shall implement appropriate technical and organizational measures in such a manner that processing will meet the requirements of the Data Protection Laws and ensure the protection of the rights of the data subject.
  2. Controller grants Processor general authorization to engage other processor(s) (i.e. sub-processor(s)), including those identified at http://www.talentquest.com/sub-processors/, provided, however, that Processor shall comply with the requirements of Section 3, and also shall provide Controller with prior written notice of any intended changes concerning the addition or replacement of other processor(s) by posting such changes at http://www.talentquest.com/sub-processors/, thereby giving the Controller the opportunity to object to such changes.  Controller shall have 10 days from the date of notice of a new sub-processor by posting to the aforementioned internet URL to object to the use of such a sub-processor.  Controller may only object in the event that Controller believes that the sub-processor is unable to safeguard Personal Data in accordance with the requirements of this Addendum and applicable law.  Processor may not utilize the processor(s) that are the subject of the objection.   In the event that Controller objects to a sub-processor, Processor may seek to find a substitute sub-processor or, in its sole discretion, terminate the Agreement without penalty to Processor, with Controller responsible for any amounts then outstanding in accordance with the terms of the Agreement.
  3. Processor has performed an internal Privacy Impact Analysis related to general processing activities and will continue to do so as required.
  4. Where Processor engages another processor for carrying out specific processing activities on behalf of Controller, the same data protection obligations as set out in the Agreement and herein shall be imposed on that other processor by way of a contract, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR and other applicable law. Where that other processor fails to fulfil its data protection obligations, Processor shall remain fully liable to Controller for the performance of that other processor’s obligations.
  5. Processing may only be undertaken for purposes set forth in the Agreement and any exhibits, statements of work or addenda executed between the parties or written instructions the Controller (“Instructions”).  Attachment A sets out the subject-matter and duration of the processing to be undertaken, the nature and purpose of the processing, the type of Personal Data and categories of data subjects to be processed. Consent to process data related to a data subject has been provided and the processor must abide by the scope and limitations of that consent.
  6. Processor shall:
    (a) process the Personal Data only on documented lawful instructions from the Controller that are consistent with the terms of the Agreement and any applicable statement of work, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by law to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;(b) ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

    (c) secure all Personal Data, including taking all measures required pursuant to GDPR Article 32 and other applicable Data Protection Laws;

    (d) only engage another processor in compliance with the terms set forth in Sections 2 and 3;

    (e) Assist the Controller, taking into account the nature of the processing, by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR (GDPR Articles 12-23) and other applicable Data Protection Laws, provided, however, that such assistance may result in additional charges to Controller at Processor’s then prevailing hourly rates;

    (f) Assist the Controller in ensuring compliance with the obligations pursuant to GDPR Articles 32 to 36 and other Data Protection Laws taking into account the nature of processing and the information available to the processor, provided, however, that such assistance may result in additional charges to Controller at Processor’s then prevailing hourly rates;

    (g) at the choice of the Controller, delete or return all Personal Data to the Controller after the end of the provision of services relating to processing and delete existing copies unless applicable Data Protection Laws requires storage of the Personal Data;

    (h) make available to the Controller all information necessary to demonstrate compliance with the obligations set forth herein and allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller, provided, however, that such assistance may result in additional charges to Controller at Processor’s then prevailing hourly rates; and

    (i) Processor shall immediately inform Controller if, in its opinion, an instruction infringes GDPR requirements or other European Union, Member State, UK or Swiss data protection provisions.

  7. To the extent that Processor receives personal data from Controller that Controller has transferred, transfers, or causes or caused to be transferred from the European Economic Area, United Kingdom or Switzerland for processing under the Agreement, Controller and Processor agree to the terms of the Controller to Processor Standard Contractual Causes approved by the European Commission, set forth in Attachment A and incorporated into this Addendum by reference.
  8. In the event of a conflict between a provision of this Addendum and the Agreement, the terms of the Addendum shall control.   All other provisions of the Agreement remain in effect and unchanged.

ATTACHMENT A: STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, TalentQuest LLC and TalentQuest Client, each a ‘party’; together ‘the parties’,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1
Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2
Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3
Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4
Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorized access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7
Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8
Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9
Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10
Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11
Sub-processing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12
Obligation after the termination of personal data-processing services

  1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

Sharing data on employees or prospective employees to the Processor only for purposes of providing services such as hiring, developing or retaining employees.  Controller contact details will be shared for business purposes.

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

Processing the data for purposes of providing talent management services such as hiring, developing or retaining employees of the Controller. Controller contact details will be used for business and marketing purposes.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Data on Controller’s employees.

Categories of data

The personal data transferred concern the following categories of data (please specify):

  • Identifiers. We may collect identifiers, such as your first name, middle name, last name, maiden name, alias, email address, phone number, username, physical address, geolocation information, IP address, date and place of birth.
    Demographic Information. We may collect demographic information, such as your age, gender, and marital status.
    Internet Activity. We may collect internet activity information, such as your IP address, browser characteristics, device IDs and characteristics, operating system version, and referring URLs.
  • Commercial Information. We may collect commercial information, such as Apps or Services purchased and/or used.
  • Social Media Information. We may collect information from your social media account consistent with your settings within the social media service, such as location, check-ins, activities, interests, photos, status updates, and friend list.
  • Payment Information. We may collect payment information, such as credit or debit card information, bank account information, and billing information.
  • Location Information. We may collect location information, such as location based on IP address or geolocation information.
  • Employment Information. We may collect employment information, such as employment history, current and former employer names and addresses, profession or title/role, employer/employee identification information, expense information, tax and withholding information, and emergency contact information.
  • Audio Recordings. We may collect audio recordings, such as customer care calls.
  • Inferences. We may collect inferences regarding your marketing and communications preferences, interests, and other characteristics.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

racial or ethnic origin with the consent of the individual.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

Accounts Payable, Accounts Receivable, Consulting Services, Customer Account Information, Customer Support, Customer Onboarding, Sales and Marketing (Controller contacts only), Legal and Tax Purposes, Product Development

 

Appendix 2

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached): As described at https://www.talentquest.com/data-protection-readiness-statement/