Data Processing Addendum
Last revised: February 17, 2021
This Client Data Processing Addendum forms a part of the Master Services Terms and Conditions between the client who signed the applicable Order (“Client”) and OpenComp Inc and shall be effective on the date both parties execute the Agreement (“Effective Date”). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
Section 1. Definitions
“Agreement”means OpenComp’s Master Services Terms and Conditions, which governs the provision of Services to Client.
“Data Controller”means the entity, which determines the purposes and means of the processing of Personal Data.
“Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.
“Process” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaption, or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
“Data Subject” means the individual to whom Personal Data relates.
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, applicable to the processing of Personal Data under the Agreement.
“GDPR” 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”). GDPR is a Data Protection Law and Regulation.
“Personal Data”means personal information or personal data as defined by GDPR or CCPA as applicable.
“Security Incident”means any unauthorized or unlawful breach of security that leads to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.
“Services” means any product or service provided by OpenComp to Client pursuant to the Agreement.
“Standard Contractual Clauses” means the agreement executed by and between Client and OpenComp at attached hereto as Schedule 3 pursuant to the European Commission’s decision of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
“Sub-Processor” means any Data Processor engaged by OpenComp to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA.
“Supervisory Authority”means an independent public authority, which is established by a EU Member State pursuant to the GDPR.
Section 2. Processing of Personal Data
2.1 Role of the Parties
Client will act as the Data Controller and OpenComp will act as the Data Processor under this Addendum.
2.2 Client’s Processing of Personal Data
Client agrees that (i) it shall comply with its obligations as a Data Controller under Data Protection Laws and Regulations in respect of its Processing of Personal Data and any processing instructions it issues to OpenComp; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws and Regulations for OpenComp to Process Personal Data and provide the Service pursuant to the Agreement and this DPA. Client will indemnify OpenComp for any breach of the foregoing obligations.
2.3 OpenComp’s Processing of Personal Data.
OpenComp shall process this Personal Data only for the purposes described in this DPA and only in accordance with Client’s documented lawful instructions. The parties agrees that this DPA and the Agreement set out Client’s complete and final instructions to OpenComp in relation to the Processing of Personal Data and Processing outside the scope of these instructions (if any) shall require prior written agreement of Client and OpenComp.
2.4 Details of the Processing.
The subject matter of Processing Personal Data by OpenComp is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 to this DPA.
2.5 Confidentiality of Personal Data.
OpenComp shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of Personal Data, have received appropriate training on their responsibilities, both duration and after their engagement with OpenComp, and have executed written confidentiality agreements. In addition, OpenComp shall take commercially reasonable steps to limit access to Personal Data to those personnel who require such access to perform the Agreement.
Section 3. Sub-Processors
3.1 Authorized Sub-Processors
Client acknowledges and agrees that OpenComp may engage the Authorized Sub-Processors listed on Schedule 2 (the “List”) to access and Process Personal Data in connection with the Agreement. OpenComp shall enter into a written agreement with each Authorized Sub-Processors containing data protection obligations no less protective than those in this Addendum (including confidentiality obligations) with respect to the protection of Personal Data.
3.2 Notification of new Sub-Processors
At least ten (10) days before enabling any third party other than Authorized Sub-Processors to access or participate in the Processing of Personal Data, OpenComp will add such third party to the List and notify Client of that update via email. Client may object to such engagement in writing within ten (10) days of receipt of the aforementioned notice by OpenComp.
3.2.1 If Client reasonably objects to an engagement in accordance with Section 3.2, OpenComp shall provide Client with a written description of commercially reasonable alternative(s), if any, to such engagement, including without limitation modification to the Services. If OpenComp, in its sole discretion, cannot provide any such alternative(s), or if Client does not agree to any such alternative(s) if provided, then Client may terminate the applicable Order Form(s) with respect to those Services which cannot be provided by OpenComp without use of the objected-to new Sub-Processors, by providing written notice to OpenComp. Termination shall not relieve Client of any fees owed to OpenComp under the Agreement.
3.2.2 If Client does not object to the engagement of a third party in accordance with Section 3.2 within ten (10) days of notice by OpenComp, that third party will be deemed an Authorized Sub-Processors for the purposes of this Addendum.
3.3 Liability for Authorized Sub-Processors.
OpenComp shall be liable to Client for the acts and omissions of Authorized Sub-Processors to the same extent that OpenComp itself be liable under this Addendum had it conducted such acts or omissions.
Section 4. Rights of Data Subjects
4.1 Data Subject Request
OpenComp shall, to the extent permitted by law, promptly notify Client upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision making (such requests individually and collectively “Data Subject Requests”). If OpenComp receives a Data Subject Request in relation to Client’s Personal Data, OpenComp shall advise the Data Subject to submit their request to the Client, and Client shall be responsible for responding to such request, including where necessary by using the functionality of the Services.
4.2 OpenComp assistance to Client for Data Subject Request(s).
OpenComp shall, at the request of the Client, and taking into account the nature of the Processing applicable to any Data Subject Request, apply technical and organizational measures to assist Client in complying with the Client’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Client is itself unable to respond without OpenComp’s assistance and (ii) OpenComp is able to do so in accordance with all applicable laws, rules, and regulations. Client shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by OpenComp.
Section 5. Security Measures
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, OpenComp shall maintain appropriate technical and organization measures to ensure a level of security appropriate to the risk of Processing Personal Data.
Section 6. Security Breach Notifications and Audits
6.1 Notification of a Security Incident.
Upon becoming aware of a Security Incident, OpenComp shall notify Client without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Client.
6.2 Assistance with a DPIA.
OpenComp shall, taking into account the nature of the Processing and the information available to it, provide Client with reasonable cooperation and assistance, where necessary for Client to comply with its obligations under the GDPR, conduct a data protection impact assessment (“DPIA”), and/or to demonstrate such compliance, provided that Client does not otherwise have access to the relevant information. Client shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by OpenComp.
6.3 Assistance in Cooperation with Supervisory Authorities.
OpenComp shall, taking into account the nature of the Processing and the information available to it, provide Client with reasonable cooperation and assistance with respect to Client’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Client shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by OpenComp.
OpenComp shall maintain records sufficient to demonstrate its compliance with its obligations under this Addendum, and retain such records for a period of three (3) years after the termination of the Agreement. Client shall, with reasonable notice to OpenComp, have the right to review, audit and copy such records at OpenComp’s offices during regular business hours.
Upon Client’s request, OpenComp shall, no more than once per calendar year, allow Client or its authorized representative, upon reasonable notice, subject to written confidentiality agreement(s), and at a mutually agreeable data and time, to conduct an audit or inspection of OpenComp’s data security infrastructure that is sufficient to demonstrate OpenComp’s compliance with its obligations under this Addendum, provided that Client shall provide reasonable prior notice of any such request for an audit and such inspection shall not be unreasonably disruptive to OpenComp’s business. Client shall be responsible for the costs of any such audits or inspections.
Section 7. Transfer Mechanisms for Data Transfers
Any transfer of Personal Data made subject to this Addendum from member states of the European Union, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom to any countries which do not ensure an adequate level of data protection within the meaning of laws and regulations of these countries shall, to the extent such transfer is subject to such laws and regulations, be undertaken by OpenComp through the Standard Contractual Clauses set forth in Schedule 3.
Section 8. Limitation of Liability
Each party’s liability taken together and in the aggregate arising out of or related to this DPA whether in contract, tort, or under any theory of liability, is subject to the “Limitation of Liability” clause of the Agreement, and any reference in such clause to the liability of a party means the aggregate liability of that party under the Agreement and the DPA together.
Details of the Processing of Personal Data
Nature and Purpose of the Processing
OpenComp will Process Personal Data as necessary to perform the Services pursuant to the Agreement and as instructed by Client. The personal data transferred will be subject to the following basic processing activities:
Performing Services under the Agreement
Compensation analysis for Client
Duration of the Processing
OpenComp will Process the Personal Data for the duration of the Agreement, and delete the Personal Data in accordance with the Agreement.
Data Exporter/Data Controller
The data exporter and Data Controller is Client.
Data Importer/Data Processor
The data importer and Data Processor is OpenComp Inc, a company specializing in providing human resources and recruiting services.
The personal data transferred concern the following categories of data subjects (please specify):
Data exporter may submit personal data to the data importer through the Services, the extent of which is determined and controlled by the data exporter and which may include, but is not limited to, personal data relating to the following categories of data subject:
- Client’s employee information
Categories of Data Subjects
Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include the following categories of data:
Types of Personal Data:
First Name and Last Name
Contact information (E-mail address, physical business address) Compensation: Salary, incentive, equity
Special categories of data (if appropriate): NONE
Organization and Security Practices: See Section 5 “Security Measures” of the DPA.
List of Authorized Sub-Processors
LTSE Services, Inc.
Slack Technologies, Inc.
Help Scout PBC
Standard Contractual Clauses (Processors)
To enable the Licensee to transfer, store and process personal information relating to the personal data subjects located within the European Economic Area (“EEA”) for the purpose of this Agreement, OpenComp agrees to sign the EU standard contractual clauses (controller to processor) for the transfer of personal information of personal data to processors established in third countries (European Commission Decision 2010/87/EU) (“Standard Contractual Clauses”) as amended or replaced from time to time. If a decision, decree, legislative enactment or other binding instrument is brought into effect to replace the Standard Contractual Clauses or is otherwise intended to establish new means of transferring personal data from the European Union to the United States in compliance with Chapter IV of Directive 95/46/EC as amended or replaced from time to time, including any such decision taken under Article 25(6), the parties will, at either party’s request, amend this Exhibit E as may be necessary or desirable in the determination of the data exporter (defined below), acting reasonably, to cover the continued transfer and processing of personal information for the purpose of this Agreement.
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.
Name of the data exporting organisation: Client listed on the applicable Order (the data exporter)
the data importing organisation: OpenComp Inc (OpenComp”) a California LLC with offices at 251 Post Street, Suite 310, San Francisco, CA 94108
(the data importer)
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.
'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 data1;
'the data exporter' means the controller who transfers the personal data;
'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;
'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor 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 subcontract;
'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;
'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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.
Third-party beneficiary clause
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.
Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.
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.
The data subject can enforce against the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.
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.
Obligations of the data exporter
The data exporter agrees and warrants:
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;
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;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
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, unauthorised 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;
that it will ensure compliance with the security measures;
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;
to forward any notification received from the data importer or any subprocessor 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;
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 subprocessing 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;
that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor 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
that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
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;
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;
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
that it will promptly notify the data exporter about:
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,
any accidental or unauthorised access, and
any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
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;
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;
to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, 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;
that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
that the processing services by the subprocessor will be carried out in accordance with Clause 11;
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
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 subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
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 subprocessor 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 subprocessor of its obligations in order to avoid its own liabilities.
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 subprocessor 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
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:
to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
to refer the dispute to the courts in the Member State in which the data exporter is established.
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.
Cooperation with supervisory authorities
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.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, 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.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor 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 subprocessor's obligations under such agreement.
The prior written contract between the data importer and the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for subprocessing 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.
The data exporter shall keep a list of subprocessing 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.
Obligation after the termination of personal data processing services
The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor 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.
The data importer and the subprocessor 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.
Details of the Transfer
See Schedule 1 of the DPA “Details of the Processing of Personal Data.”
Organizational Security Practices
See Schedule 1 of the DPA “Details of the Processing of Personal Data.”