These Terms of Data Processing form part of the Master Services Agreement between Carrot and Customer ("Agreement"). Carrot and Customer are each referred to herein as a "Party" and collectively as the "Parties". Capitalized terms used but not defined herein shall have the meaning given in the Agreement
In the course of providing the Services, Carrot will process personal data within the meaning of Art. 4 no 1 and 2 of the EU General Data Protection Regulation ("GDPR") of Customer or Customer’s affiliates located in the European Economic Area ("EEA"), the United Kingdom and Switzerland, for which Customer or Customer’s affiliates are responsible as provided under Art. 4 no 7 GDPR ("Customer Personal Data").
These Terms of Data Processing regulate the data protection obligations of the Parties when processing Customer Personal Data under the Agreement and will ensure such processing will only be rendered on behalf of and under the Instructions of Customer and in accordance with the EU Standard Contractual Clauses for Processors pursuant to European Commission Decision of 5 February 2010 ("SCC") and Art. 28 et seq. GDPR.
These Terms of Data Processing cover Customer Personal Data contained in the eligibility file provided by the Customer to Carrot. The Customer Personal Data contained in the eligibility file is processed by Carrot to verify whether a Customer's employee, director, agency worker, consultant or contractor ("Eligible Individual") is eligible to receive the Services from Carrot. These Terms of Data Processing are not applicable to personal data provided by an Eligible Individual to Carrot directly. Personal data provided by the Eligible Individual directly is covered by the contractual relationship between Carrot and the Eligible Individual. For personal data provided by the Eligible Individual, Carrot is responsible as provided under Art. 4 no 7 GDPR.
In addition to the definition in Clause 1 SCC, the following shall apply:
- "Instruction" means any documented instruction, submitted by Customer to Carrot, directing Carrot to perform a specific action with regard to personal data, including but not limited to the rectification, erasure or restriction of processing of personal data. Instructions shall initially be specified in the Agreement and may, from time to time thereafter, be amended, supplemented or replaced by Customer by separate written or text form instructions, provided that such instructions still fall within the scope of the Services. Instruction issued for the purpose of complying with statutory claims under the GDPR such as rectification, erasure, restriction or portability of personal data fall within the scope of the Services.
- "Applicable Law" means all laws, rules and regulations applicable to each party in its use of or provisioning of the Services, including but not limited to those applicable to the processing of personal data. This means, in particular, the GDPR and all national laws validly amending the applicable rules for the processing of personal data, or in relation to the United Kingdom or Switzerland, the respective laws applicable in these countries.
- "Sub-processor" means a third-party data processor engaged by Carrot and processing Customer Personal Data on Carrot's behalf and instructions.
- Terms used but not defined in this Section or in the SCC, including but not limited to "personal data", "personal data breach", "processing", "controller", "processor" and "data subject", shall have the same meaning as set forth in Art. 4 GDPR. Where the scope of the definitions in Art. 4 GDPR go beyond of what is defined in the SCC, the broader understanding shall apply.
- References to the GDPR shall, in relation to Customer Personal Data subject to either the privacy law in the United Kingdom or in Switzerland, refer to the respective applicable privacy law in the United Kingdom or Switzerland.
2. AMENDMENT OF MASTER AGREEMENT
These Terms of Data Processing amend the Agreement with respect to any processing of Customer Personal Data provided by Customer or Customer’s affiliates located in the EEA, UK or Switzerland (each affiliate is hereinafter referred to as: "European Customer Affiliate") as amended from time to time by written agreement between both Parties.
For purposes of these Terms of Data Processing, Customer and Carrot agree that Customer, including European Customer Affiliates, is the controller of personal data and Carrot is the processor of such data, except when Customer or Customer’s affiliate acts as a processor of personal data, in which case Carrot is a sub-processor.
3 DATA PROCESSING AND STANDARD CONTRACTUAL CLAUSES
Any processing operation as described in Sec. 5. shall be subject to these Terms of Data Processing which include the SCC as contained in Exhibit B whereby the SCC shall prevail over any conflicting clauses in the Agreement or these Terms of Data Processing.
The Parties agree that the SCC shall be directly binding between Carrot as Data Importer (as defined therein), Customer and each European Customer Affiliate as Data Exporter (as defined therein) in relation to the personal data provided by Customer or such European Customer Affiliate.
Customer is authorized to enter into these Terms of Data Processing on behalf of its European Customer Affiliates in which case each European Customer Affiliate will have the same rights and obligations as referred to Customer with the exception of this Sec. 3.3. Alternatively, each European Customer Affiliate can co-sign these Terms of Data Processing. Customer is responsible for ensuring that each of the European Customer Affiliates is bound by these Terms of Data Processing.
References to various Articles and terms from the Directive 95/46/EC in the SCC will be treated as references to the relevant and appropriate Articles in the GDPR.
4 SAFEGUARDS AND SUPPORT FOR INTERNATIONAL DATA TRANSFERS
Carrot will support Customer to ensure compliance with Applicable Law for the transfer of Customer Personal Data to third countries with respect to data subjects located in the EEA by providing a risk assessment in the form contained in Exhibit C. The Parties agree to document this risk assessment and to make it available to the competent supervisory authority upon request. The Parties acknowledge and agree that as further guidance about the use of the SCC and accompanying supplementary measures becomes available, the Parties will reconvene and discuss potentially required amendments to these Terms of Data Processing and this Sec. 4. In particular, the Parties waive this Sec. 4 or parts thereof, to the extent the respective safeguard is no longer required.
Carrot agrees and warrants that it has no reason to believe that Applicable Law, including any requirements to disclose Customer Personal Data or measures authorizing access by public authorities, prevents Carrot from fulfilling its obligations under these Terms of Data Processing and the SCC contained herein.
Carrot shall promptly notify Customer if Carrot becomes aware of any laws or change in law, government policies or jurisprudence that affects the risk assessment under Exhibit C of these Terms of Data Processing, in particular if any such law or government policies or jurisprudence has a substantial adverse effect on the warranties and obligations provided by these Terms of Data Processing. Upon such notification by Carrot, the Parties will reconvene and discuss whether conducting a new risk assessment is required. In such a case Customer is entitled to suspend the transfer of data.
Carrot certifies that (i) it has not purposefully created back doors (non-transparent access capabilities) or similar programming that could be used to access the system and/or Customer Personal Data (ii) it has not purposefully created or changed its business processes in a manner that facilitates unauthorized access to Customer Personal Data or systems, and (iii) that Applicable Law does not require Carrot to create or maintain back doors or to facilitate unauthorized access to Customer Personal Data or systems or for Carrot to be in possession or to hand over keys to decrypt the Customer Personal Data.
Unless prohibited by Applicable Law, Carrot commits to regularly publish to or notify the Customer by a message ("Warrant Canary") that it has not received an order to disclose Customer Personal Data within the period since the last Warrant Canary has been issued. The Warrant Canary should include the certain date and time in which Carrot has not received such an order. If Carrot does not publish such a message, this indicates that Carrot may have received an order.
To mitigate risks to the rights and freedoms of data subjects, the Parties agree that in the case of a transfer of Customer Personal Data to a third country not providing an adequate level of protection, the following provisions will apply to the Parties in addition to the SCC:
- As provided for in Clause 4 (c) SCC, Carrot will implement and maintain appropriate technical and organizational security measures as described in Appendix 2 to Exhibit B. The Parties acknowledge that the technical measures should reflect the risks associated with the transfer of Customer Personal Data to a third country. The Parties agree to reconvene and discuss whether further additional safeguards are required in the light of the risk assessment pursuant to Sec. 4.1 and Exhibit C.
- In addition to Clause 4 (f) SCC, Customer represents and warrants that, if the transfer involves special categories of personal data and any other kind of Customer Personal Data, the data subject has been informed or will be informed, or as soon as possible after the transfer, that its data could be transmitted to a third country not providing an adequate level of protection.
- Customer will ensure that data subjects will be informed about where and by whom their data is processed.
- In addition to Clause 5 (d) (i) SCC, Carrot represents and warrants that it will promptly notify Customer and, where possible and in cooperation with Customer, also the data subjects about any legally binding request for disclosure of or actual or documented access attempts by public authorities to Customer Personal Data by a law enforcement authority unless otherwise prohibited by Applicable Law. Such notification shall generally include information about the Customer Personal Data requested, the requesting authority, the legal basis for the request and the response provided. If such notification is prohibited, Carrot will seek further guidance from a competent supervisory authority. If Carrot is prohibited from disclosing such information to the data subject by law, it will inform Customer of any request received from the competent supervisory authorities. The data subject can enforce this Sec. 4.6.4 against Carrot in accordance with the requirements of Clause 3 para 2 SCC.
- In addition to Clause 5 (d) (i) SCC, Carrot represents and warrants to reasonably take legal actions against any request of disclosure of Customer Personal Data and to then refrain from disclosing Customer Personal Data to the relevant authorities until a competent court has issued a final ruling on the disclosure. The data subject can enforce this Sec. 4.6.5 against Carrot in accordance with the requirements of Clause 3 para 2 SCC.
- In addition to Clause 6 (1) SCC, the Parties agree that the data subject is entitled to receive compensation from Customer and Carrot for any damage suffered as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 SCC.
- In addition to the SCC, Carrot as data importer agrees to indemnify the data subject from any material and non-material damage caused by the access to its Customer Personal Data of a governmental authority of a third country. Notwithstanding the foregoing, Carrot shall have no obligation to indemnify the data subject under this Sec. 4.6.7 to the extent the data subject has already received compensation for the same damage.
- The indemnification pursuant to Sec. 4.6.7 is limited to material and non-material damages as provided in the GDPR and excludes consequential damages and all other damages not resulting from Carrot´s infringement of the GDPR.
5. SUBJECT MATTER, DURATION, NATURE AND PURPOSE, AND SPECIFICATION OF PROCESSING OPERATIONS
The subject matter, nature and purpose of the processing are described in the Agreement, Exhibit A and this Sec. 5.1. Unless provided for otherwise in the Agreement, the processing will be limited to (i) the storage/processing of certain limited Customer Personal Data on a server and incidental access to such data when providing the SaaS services pursuant to the Agreement, and/or (ii) when rendering maintenance services for on-premise solutions. When providing on-premise maintenance, there shall be no access to or processing of Customer Personal Data but incidental access to such data stored on Customer’s premises cannot be excluded.
The categories of personal data and data subjects which may be concerned by the processing are listed in Exhibit A.
The duration of the processing shall correspond to the duration of these Terms of Data Processing as set forth in Sec. 11.
6. CARROT’S OBLIGATIONS
Carrot shall in the course of providing Services, including with regard to transfers of personal data to a third country, process Customer Personal Data only on behalf of and under the documented Instructions of Customer unless required to do so otherwise under Applicable Law; in such a case, Carrot shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest (the corresponding Clause 5 (a) SCC shall remain unaffected).
Carrot shall ensure that any natural person acting under its authority who has access to personal data does not process any personal data except on Instructions from Customer, unless Carrot, or such person is otherwise required to do so by Applicable Law.
Carrot ensures that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and that the obligation will remain after termination of these Terms of Data Processing.
6.4 Technical and Organizational Data Security Measures
- The measures specified in Exhibit B, Appendix 2 are subject to technical advancements and development (the corresponding Clause 5 (a) SCC shall remain unaffected).
- 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, Carrot shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk, as required by Art. 32 GDPR. As appropriate, this may include
- the pseudonymization and encryption of personal data;
- the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; and
- the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident.
- When assessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed.
- If Carrot significantly modifies the measures specified in Exhibit B, Appendix 2, such modifications have to meet the obligations pursuant to Sec. 6.4.2 and 6.4.3. Carrot shall make available to Customer a description of such measures which enables Customer to assess compliance with Art. 32 GDPR. Carrot and Customer shall agree on such significant modifications by signing the modified Exhibit B, Appendix 2 after every amendment. Customer shall not refuse to accept any modification that meets the requirements pursuant to Sec. 6.4.2 and 6.4.3 unless Customer has reason to believe that the modifications fall below the agreed level of security.
- Carrot shall implement a data protection management procedure according to Art. 32 para 1 lit. d) GDPR, for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures to reasonably ensure the security of the processing. Carrot will further, by way of regular self-audits, reasonably ensure that the processing of Customer Personal Data conforms with the provisions as agreed with Customer or to Customer’s Instructions.
Carrot shall, while taking into account the nature of the processing, assist Customer through appropriate technical and organizational measures, with the fulfilment of Customer’s obligations to respond to requests for exercising rights of data subjects in accordance with Applicable Law, in particular Art. 15 through 18 and 21 GDPR.
Taking into account the nature of the processing and the information available to Carrot, Carrot shall assist Customer with ensuring compliance with the obligations pursuant to Art. 33 through 36 GDPR (Data Security Breach Notification, Data Protection Impact Assessment, Consultation with Data Protection Supervisory Authorities).
6.7 Documentation and Audit Rights
- Carrot shall, upon request and subject to a non-disclosure agreement, provide to Customer a comprehensive documentation of the technical and organizational data security measures in accordance with industry standards. The effectiveness of Carrot’s technical and organizational security measures will be audited by an independent third-party on an annual basis, in an SSAE16 SOC 2 Type 2 audit or equivalent. In addition, Carrot may, in its discretion provide data protection compliance certifications issued by a commonly accepted certification issuer which has been audited by a data security expert, by a publicly certified auditing company or by another customer of Carrot.
- If Customer has justifiable reason to believe that Carrot is not complying with the terms and conditions under these Terms of Data Processing, in particular with the obligation to implement and maintain the agreed technical and organizational data security measures, and only once per year (unless there are specific indications that require a more frequent inspection), Customer is, subject to a non-disclosure agreement, entitled to audit Carrot (the corresponding Clause 5 (f) SCC shall remain unaffected). This audit right can be exercised by (i) requesting additional information, (ii) accessing the databases which process Customer Personal Data or (iii) by inspecting Carrot's working premises whereby in each case no access to personal data of other customers or Carrot’s confidential information will be granted. Alternatively, Customer may also engage third party auditors to perform such tasks on its behalf in accordance with Sec. 6.7.4. The costs associated with such audits and/or for providing additional information shall be borne by Customer unless such audit reveals Carrot’s material breach with these Terms of Data Processing.
- If Customer intends to conduct an audit at Carrot’s working premises, Customer shall give reasonable notice to Carrot and agree with Carrot on the time and duration of the audit. In the case of a special legitimate interest, such audit can also be conducted without prior notice. Inspections shall be made during regular business hours and in such a way that business operations are not disturbed. At least one employee of Carrot may accompany the auditors at any time. Carrot may memorialize the results of the audit in writing which shall be confirmed by Customer.
- Customer may not appoint a third party as auditor who (i) Carrot reasonably considers to be in a competitive relationship to Carrot, or (ii) is, as provided in Clause 5 (f) SCC not sufficiently qualified to conduct such an audit, or (iii) is not independent. Any such third-party auditor shall only be engaged if the auditor is bound by a non-disclosure agreement with Carrot prior to conducting any audit or is bound by statutory confidentiality obligations.
- Carrot shall audit its Sub-processors on a regular basis and will upon Customer’s request confirm their compliance with data protection law and the obligations set upon the Sub-processors according to the data processing agreement concluded with them. Only in the case of justified reasons, Customer shall issue Instructions to Carrot to conduct further audits that Carrot will conduct to the extent permitted.
6.8 Notification Duties
Carrot shall inform Customer without undue delay in text form (e.g. letter, fax or e-mail) of the events listed in Clause 5 (d) SCC and the following events:
- Requests from third parties including such from a data protection supervisory authority regarding Customer Personal Data; or
- Threats to Customer Personal Data in possession of Carrot by garnishment, confiscation, insolvency and settlement proceedings or other incidents or measures by third parties. In such case, Carrot shall immediately inform the respective responsible person/entity that Customer holds the sovereignty and ownership of the personal data.
The corresponding Clauses 5 (b) and (d) SCC shall remain unaffected.
For the purpose of complying with Clause 5 (d) SCC and for enabling Customer to comply with its own data breach notification obligations pursuant to Art. 33 para 1 GDPR and Art. 34 para 1 GDPR, Carrot shall notify Customer without undue delay after becoming aware of a personal data breach. Such notice will, if possible, include the following information:
- a description of the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
- a description of the measures taken or proposed to be taken by Carrot and/or Customer to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects; and
- any further information which is available and known to Carrot and (i) that is necessary for Customer to comply with Customer’s notification obligations according to this Sec. 6.8.2 and (ii) which Customer does not otherwise have access to.
Carrot shall inform Customer immediately if, from its point of view, an Instruction of Customer may lead to a violation of the GDPR or other Applicable Law. Until Customer either confirms or alternates the Instruction, Carrot may refuse to comply with the Instruction issued.
6.9 Rectification, Erasure (Deletion), Restriction
- If legally required and Customer is unable to perform the applicable task itself, or if provided so in the services description contained in the Agreement, Carrot shall rectify, erase (delete), restrict (block) or transmit Customer Personal Data upon Customer’s request. Any erasure of Customer Personal Data pursuant to this Sec. 6.9 shall be executed in such a manner that restoring or recovering such data is rendered reasonably impossible.
- At Customer’s request, Carrot shall conduct a data protection-compliant destruction of data media and other material provided by Customer. Alternatively, at the request of Customer, Carrot shall provide the data carriers and other material to Customer or store it on Customer’s behalf.
- Unless Union or Member State law requires a retention of the personal data, Carrot shall, upon completion of the Services in consultation with Customer, either delete or return all Customer Personal Data in its possession to Customer.
- Without prejudice to the generality of Clause 5 (d) of the SCC, if a data subject addresses Carrot with claims for access, rectification, erasure, restriction, objection or data portability, Carrot shall refer the data subject to Customer.
Carrot will inform Customer of the name and the official contact details of its data protection officer if Carrot is, by Applicable Law, required to appoint a data protection officer. If Carrot is not required to appoint a data protection officer, Carrot shall – in its own discretion – name a person responsible for dealing with questions relating to applicable data protection law and data security in the context of performing these Terms of Data Processing.
In the case claims based on Art. 82 GDPR are raised against Customer, Carrot shall reasonably support Customer with its defense to the extent the claim arises in connection with the processing of personal data by Carrot in connection with performing the Services to Customer.
Carrot will make available to Customer all information necessary to demonstrate compliance with the obligations laid down in these Terms of Data Processing and Art. 28 GDPR.
7. CUSTOMER’S OBLIGATIONS
Customer shall provide all Instructions pursuant to these Terms of Data Processing to Carrot in written, electronic or verbal form (the corresponding Clause 4 (b) SCC shall remain unaffected). Verbal Instructions shall be confirmed immediately in written form thereafter.
Customer shall notify Carrot in writing of the names of the persons who are entitled to issue Instructions to Carrot. In any event, the managing directors and personnel/human resource management of Customer are entitled to issue Instructions.
Customer shall inform Carrot without undue delay if processing by Carrot might lead to a violation of data protection regulations.
In the case claims based on Art. 82 GDPR are raised against Carrot, Customer shall reasonably support Carrot with its defense (at Carrot’s expense) to the extent the claim arises in connection with the processing of personal data by Carrot in connection with performing the Services to Customer.
Customer provides its general written authorization to the engagement of Sub-processors by Carrot if the requirements of this Sec. 8.1, 8.2 and 8.3 are fulfilled. Any Sub-processor is obliged before initiating the processing, to commit itself in writing for the benefit of Customer and its European Customer Affiliates to comply with the same data protection obligations as the ones under these Terms of Data Processing or legal Act within the meaning of Art. 28 para 3, 4 and 6 GDPR vis-à-vis Customer unless explicitly agreed otherwise. The agreement with the Sub-processor must provide at least the level of data protection required by these Terms of Data Processing. Carrot shall remain fully liable to Customer for the performance of the Sub-processor’s obligations (the corresponding Clause 11 SCC shall remain unaffected).
Any Sub-processor must in particular agree to comply with the agreed technical and organizational security measures in accordance with Sec. 6.4 herein and provide Carrot and also Customer, with a list of the implemented technical and organizational measures. Sub-processor’s measures may differ from the ones agreed between Customer and Carrot but shall not fall below the level of data security as provided by the measures of Carrot.
Carrot shall not add or replace any Sub-processor except where Carrot has provided Customer with at least 14 days’ prior notice by electronic means or via email and the opportunity to object to such Sub-processor in accordance with this Sec. 8.3. Upon Customer’s request, Carrot will provide all information necessary to demonstrate that the Sub-processor will meet all requirements pursuant to Sec. 8.1 and 8.2. In the case Customer objects to the sub-processing, Carrot can choose to either not engage the Sub-processor or to terminate the Agreement or any related service agreement with two (2) months prior written notice. Until the termination of the Agreement and/or any service agreement, Carrot may suspend the portion of the Services which is affected by the objection of Customer. Customer shall not be entitled to a pro-rata refund of the remuneration for the Services, unless the objection is based on justified reasons of incompliance with applicable data protection law.
Subject to Carrot complying with the obligations under Clause 11 SCC and Art. 28 para 2 GDPR, Customer herewith agrees, also on behalf of its European Customer Affiliates, to the Sub-processors as set out below:
- Files.com provided by Action Verb LLC for the purpose of providing storage services relating to the transfer of member data to Carrot’s database in the United States
- Google Drive provided by Google LLC for the purpose of internal business data storage in the United States
- Azure provided by Microsoft Corp. for the purpose of providing data hosting services in the United States
- Zendesk provided by Zendesk Inc. for the purpose of providing customer support and troubleshooting services in the United States
Where a Sub-processor refuses to be bound by the same data protection obligations as the ones under these Terms of Data Processing, Customer may consent to such other terms whereby such consent shall not be unreasonably withheld if, upon request of the Customer, Carrot can demonstrate Sub-processor’s compliance with Applicable Law.
Customer and Carrot shall be each liable for damages of concerned data subjects according to Art. 82 GDPR (external liability). Either Party shall be entitled to claim back from the other, Carrot or Customer, that part of the compensation corresponding to their part of responsibility for the damage.
As regards the internal liability and without any effect as regards the external liability towards data subjects, the Parties agree that notwithstanding anything contained hereunder, when providing the Services, Carrot’s liability for breach of any of these Terms of Data Processing shall be subject to the liability clause agreed in the Agreement. Further, no European Customer Affiliate shall become beneficiary of these Terms of Data Processing without being bound by these Terms of Data Processing and without accepting this liability clause.
10. COSTS FOR ADDITIONAL SERVICES
If Customer’s Instructions lead to a change from or increase of the agreed Services or in the case of Carrot’s compliance with its obligations to assist Customer with Customer’s own statutory obligations, Carrot is entitled to charge reasonable fees for such tasks which are based on the prices agreed for rendering the Services and/or notified to Customer in advance.
11. CONTRACT PERIOD
The duration of these Terms of Data Processing depends on the duration of the Agreement. It commences and terminates with the provisioning of the Services under the Agreement, unless otherwise stipulated in the provisions of these Terms of Data Processing.
Carrot may modify or supplement these Terms of Data Processing, with notice to the other Customer, (i) if required to do so by a supervisory authority or other government or regulatory entity, (ii) if necessary to comply with Applicable Law, (iii) to implement standard contractual clauses laid down by the European Commission or (iv) to adhere to an approved code of conduct or certification mechanism approved or certified pursuant to Art 40, 42 and 43 of the GDPR. Customer shall notify Carrot if it does not agree to a modification, in which case Customer may terminate these Terms of Data Processing and the Agreement with two (2) weeks' prior written notice, whereby in the case of an objection not based on incompliance of the modifications with applicable data protection law, Carrot shall remain entitled to claim its agreed remuneration until the term end.
13. WRITTEN FORM
Any side agreements to these Terms of Data Processing as well as changes and amendments of these Terms of Data Processing or the Services hereunder, including this Sec. 13, shall be in writing.
14 CHOICE OF LAW
These Terms of Data Processing is governed by, and shall be interpreted in accordance with, the laws of the place of residence of Customer or European Customer Affiliates, or, if these parties are not controllers, Customer’s or European Customer Affiliates’ customers excluding conflict of law provisions, to the extent not otherwise provided by Clause 7 SCC.
With respect to any issues arising of or in connection with data protection, these Terms of Data Processing shall prevail over all other agreements between the Parties.
In the event a clause under the Agreement has been found to violate the GDPR or any other Applicable Law, the Parties will mutually agree on modifications to the Agreement to the extent necessary to ensure data privacy-law compliant processing.
Exhibit A – Specifications of the Processing
1. Subject-matter, nature and purpose of the processing
Please describe the subject matter, nature and purpose of the processing in a manner that third party is able to understand what the subject-matter of the processing is and how and why personal data is processed:
The following information is collected and processed for the purpose of determining employee eligibility for fertility benefits through Carrot.
2. Types of personal data
Please list the types of personal data affected by the processing (e.g. contact details, financial data, purchase data etc.):
- Employee first name and last name
- Employee geography
- Employee ID
- Employee eligibility date
- Employee company e-mail address
3. Special categories of data (if appropriate)
Please list the types of special categories of personal data affected by the processing (e.g., data regarding health, religion, ethnicity, political opinion, trade union membership):
4. Categories of data subjects
Please list the categories of data subjects affected by the processing (e.g., customers, customers of the customer, employees, suppliers):
Employees, directors, agency workers, consultants and contractors of the Customer.
5. Data Exporter
The Data Exporter is the Customer as defined in the Agreement.
6. Data Importer
The Data Importer is Carrot, an online service provider that offers fertility benefit services to employees through its online platform.
Exhibit B – Standard Contractual Clauses for Processors
Standard Contractual Clauses for 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.
Customer and/or each of the European Customer Affiliates is hereinafter referred to as the "Data Exporter" with respect to the personal data provided by the respective Data Exporter.
Processor is hereinafter referred to as the "Data Importer".
The Data Exporter(s) and the Data Importer, each a "party" and collectively "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.
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 '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 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 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
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 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.
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.
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 Organisational 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, 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;
(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 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;
(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 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;
(i) 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
(j) that it will ensure compliance with Clause 4(a) to (i).
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 Organisational 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 unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised 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 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;
(h) that, in the event of subprocessing, it has previously informed the Data Exporter and obtained its prior written consent;
(i) that the processing services by the Subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the Data Exporter.
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 Subprocessor, 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 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.
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 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
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.
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 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.
3. 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.
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 Subprocessor which imposes the same obligations on the Subprocessor as are imposed on the Data Importer under the Clauses (This requirement may be satisfied by the Subprocessor co-signing the contract entered into between the Data Exporter and the Data Importer which is based on the terms and conditions of this Agreement.). 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.
2. 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.
3. 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.
4. 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
1. 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.
2. 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.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Data Exporter is the entity as defined in Sec. 5 of Exhibit A of the Terms of Data Processing.
The Data Importer is the entity as defined in Sec. 6 of Exhibit A of the Terms of Data Processing.
As defined in Sec. 4 of Exhibit A of the Terms of Data Processing.
Categories of data
As defined in Sec. 2 of Exhibit A of the Terms of Data Processing.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The data listed above is processed solely to provide the Software as a Service (SaaS) and/or maintenance services as more fully described in the Agreement. Specifically, the processing will be limited to the storage/processing of certain limited Customer Personal Data on a server and incidental access to such data when providing the SaaS services pursuant to the Agreement.
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):
Sub-Processors will be bound to adhere to similar but not identical organizational security measures which shall not fall below the level of data security as agreed herein. Any organizational security measures are subject to change of technical standards and can be adopted. If so requested, Data Importer will provide Data Exporter with a description of the then current measures.
1. Pseudonymization and Encryption, Art. 32 para 1 point a GDPR
Pseudonymization contains measures that enable one to process personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that this additional information is stored separately, and is subject to appropriate technical and organizational measures. Encryption contains measures that enable one to convert clearly legible information into an illegible string by means of a cryptographic process.
- Stored data is encrypted where appropriate, including any backup copies of the data
2. The ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, Art. 32 para 1 point b GDPR
Confidentiality and integrity are ensured by the secure processing of personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage.
2.1.1. Physical access control
Measures that prevent unauthorized persons from gaining access to data processing systems with which personal data are processed or used.
- Physical access control systems
- Definition of authorized persons and Management and documentation of individual authorizations
- Regulation of Visitors and external staff
- Monitoring of all facilities housing IT systems
- Logging of physical access
2.1.2 System/Electronic access control
Measures that prevent data processing systems from being used without authorization.
- User Authentication by simple authentication methods (using username/password)
- Secure transmission of credentials using networks (using TSL and SSL)
- Automatic account locking, beginning in 2021
- Guidelines for Handling of passwords
- Definition of authorized persons
- Managing means of authentication
- Access control to infrastructure that is hosted by cloud service provider
2.1.3 Internal Access Control
Measures that ensure that persons entitled to use a data processing system have access only to the data to which they have a right of access, and that personal data cannot be read, copied, modified or removed without authorization in the course of processing or use and after storage.
- Automatic and manual locking
- Access right management
- Access right management including authorization concept, implementation of access restrictions, implementation of the "need-to-know" principle, managing of individual access rights
2.1.4 Isolation/Separation Control
Measures to ensure that data collected for different purposes can be processed (storage, amendment, deletion, transmission) separately.
- Network separation
- Segregation of responsibilities and duties
- Document procedures and applications for the separation
2.1.5 Job Control
Measures that ensure that, in the case of commissioned processing of personal data, the data are processed strictly corresponding the instructions of the principal.
- Training and confidentiality agreements for internal staff and external staff
2.2.1 Data transmission control
Measures ensure that personal data cannot be read, copied, modified or removed without authorization during electronic transmission or transport, and that it is possible to check and establish to which bodies the transfer of personal data by means of data transmission facilities is envisaged.
- Secure transmission between client and server and to external systems by using industry-standard encryption
- Secure network interconnections ensured by Firewalls, etc.
- Logging of transmissions of data from IT system that stores or processes personal data
2.2.2 Data input control
Measures that ensure that it is possible to check and establish whether and by whom personal data have been input into data processing systems, modified or removed.
- Logging authentication and monitored logical system access
- Logging of data access including, but not limited to access, modification, entry and deletion of data
- Documentation of data entry rights and partially logging security related entries
2.3 Availability and Resilience of Processing Systems and Services
Availability includes measures that ensure that personal data is protected from accidental destruction or loss due to internal or external influences. Resilience of processing systems and services includes measures that ensure the ability to withstand attacks or to quickly restore systems to working order after an attack.
- Cloud-based backup solution
- Implementation of transport policies
- Backup Concept
- Protection of stored backup media
3. The ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident, Art. 32 para 1 point c GDPR
Organizational measures that ensure the possibility to quickly restore the system or data in the event of a physical or technical incident.
- Continuity planning (Recovery Time Objective)
4. A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing, Art. 32 para 1 point d GDPR
Organizational measures that ensure the regular review and assessment of technical and organizational measures.
- Testing of emergency equipment
- Documentation of interfaces and personal data fields
- Internal assessments
EXHIBIT C - INTERNATIONAL DATA TRANSFERS – RISK ASSESSMENT
Carrot provides the information below enabling the Customer to perform the risk assessment pursuant to Section 4.1 of these Terms of Data Processing.