Applicant Tracking Software | Data Processing Agreement

Data Processing Agreement

Applicant Tracking Software offers a compliance feature that provides Users with a number of controls and security features that can be used to assist with their organizational obligations under the EU General Data Protection Regulation 2016/679 (“GDPR”) (“Data Protection Laws”).

For purposes of this Data Processing Agreement (as amended from time to time, the “Agreement”), the company or organization name associated with the Account being created is the “Company” and Applicant Tracking Software is the “Data Processor” (as the term is defined in the Data Protection Laws). Each party will comply with all applicable Data Protection Laws and regulations in the performance of its obligations set out under this Agreement, including GDPR, in each case including all other successor legislation and regulation thereto.

1. Data Processing

1.1 Processing of Company User Personal Data

Applicant Tracking Software processes personal data (as the term is defined in the Data Protection Laws) from User data subjects which it collects as a Data Controller (as the term is defined in the Data Protection Laws) in the course of providing the Services to the Company. Where data is processed by Applicant Tracking Software as a Data Controller, such processing is carried out in accordance with this Agreement.

1.2 Processing of Company Candidate Personal Data

With respect to Candidate data subjects, Applicant Tracking Software is the Data Processor and carries out the processing of personal data in accordance with Applicant Tracking Software’s Candidate Privacy Policy. The Data Processor processes such categories of personal data as are described in the above referenced Candidate Privacy Policy. This includes any implementation of Google Analytics, cookies, or other data capturing techniques on careers pages within Applicant Tracking Software.

Applicant Tracking Software will act strictly in accordance with the Company’s lawful and reasonable instructions (which may be received via your use of the Services as defined in the Terms of Service) unless applicable law requires otherwise, in which case Applicant Tracking Software shall inform the Company of that legal requirement before processing (unless that law prohibits such information on important grounds of public interest). Applicant Tracking Software shall inform the Company if it becomes aware of an instruction by the Company that, in Applicant Tracking Software’s opinion, infringes upon the Data Protection Laws.

1.3 Processor Personnel

Applicant Tracking Software will ensure that its personnel that are authorized to process the personal data in connection with the provision of the Services, have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

2. Security

Applicant Tracking Software will implement appropriate technical and organizational security measures to protect the personal data in accordance with Data Protection Laws.

3. Data Subject Rights

Taking into account the nature of the Processing, Applicant Tracking Software shall assist the Company by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under Data Protection Laws. Applicant Tracking Software will enable or assist the Company to access, rectify, erase, restrict and transmit the personal data processed by Applicant Tracking Software.

If a data subject requests information from Applicant Tracking Software concerning the processing of personal data by the Company, we will promptly forward the request to the Company, whereupon it will be the Company’s responsibility to fulfill that request as deemed appropriate by the Company.
We will provide reasonable assistance to enable the Company to comply with your obligations under Data Protection Laws, including using appropriate technical and organizational measures to assist the Company in responding to data subject access requests.
The Company may delete or request in writing the deletion or return of all personal data on termination of the Services or at any time following termination of the Services. Where the Company has not deleted the personal data prior to the termination of the Services, Applicant Tracking Software may delete all personal data at any time after 90 days following the date of termination of the Services unless otherwise required by applicable law.
The Company acknowledges and accepts that Candidates shall also have the right to withdraw their consent to the use of their personal data or information at any time and may request that Applicant Tracking Software permanently delete all information and data held about that Candidate from Applicant Tracking Software’s systems. In the event that a Candidate exercises their rights, Applicant Tracking Software shall notify the Company and they shall promptly and permanently delete all information and data held about that Candidate from Applicant Tracking Software’s systems. In the event that this has not been done so within a reasonable time, and Applicant Tracking Software has not been notified of any requirement of you or the organization or company associated with this Account for Applicant Tracking Software to retain the personal data, Applicant Tracking Software reserves the right to remove such personal data and shall not be liable in any way for any loss or damage suffered by you arising from such Candidate exercising their rights.

4. Subprocessors

You hereby give Applicant Tracking Software a general consent to engage subprocessors to process your personal data, the personal data of the company or organization name associated with the Account, and the personal data of Candidates. Applicant Tracking Software shall make details of its subprocessors available to you upon request. Where Applicant Tracking Software intends to add a new subprocessor it shall make details of such new subprocessor available on the Website at least 30 days (“Subprocessor Notice Period”) before transferring any personal data to a new subprocessor. The Company shall notify Applicant Tracking Software during the subprocessor Notice Period if it objects to the new subprocessor. If the Company does not object to the subprocessor during the subprocessor Notice Period, the Company shall be deemed to have accepted the subprocessor. If the Company has raised a reasonable objection to the new subprocessor, and the parties have failed to agree on a solution within the subprocessor Notice Period time, the Company shall have the right to terminate the Contract (including the Services and all Storage Services). During the subprocessor Notice Period, Applicant Tracking Software shall not transfer any personal data to the subprocessor.

Applicant Tracking Software shall enter into appropriate written agreements with all of its subprocessors on terms substantially similar to this agreement, including without limitation the Company’s right to conduct audits at the subprocessor, or ensure that the subprocessor will conduct audits using external auditors at least once per year. Applicant Tracking Software shall remain fully liable to the Company for the performance or non-performance of the subprocessor’s obligations.

Where the Company elects to engage one or more of our Marketplace Partners, the parties agree that such Partner is data processor of the Company, supplying its products and services directly to the Company. Marketplace Partners are not subprocessors of Applicant Tracking Software.

Where the Company uses a Marketplace Partner’s services the Company hereby acknowledges and agrees that personal data may be passed between Applicant Tracking Software and the Marketplace Partner. It is the Company’s express instruction that Applicant Tracking Software so provide such personal data to the Marketplace Partner.

Where Applicant Tracking Software receives personal data from one or more Marketplace Partners in respect of which Applicant Tracking Software reasonably believes that the Company is the Data Controller, the Company hereby instructs Applicant Tracking Software to process such personal data on the Company’s behalf.

5. Transfers of Personal Data Outside the EEA

The Standard Contractual Clauses (as defined in Annex 1) will apply to Company Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Company Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply if the Data Processor has adopted Binding Corporate Rules for Processors or an alternative recognized compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.

6. Audit Rights

We will make all information necessary to demonstrate compliance with the obligations set out in this Agreement available to the Company upon request, and allow for and contribute evidence for audits conducted by or on behalf of the Company or ensure that Applicant Tracking Software and/or any subprocessor is compliant with Data Protection Law.

7. Confidentiality

Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that (a) disclosure is required by law or (b) the relevant information is already in the public domain.

Annex 1

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 the entity identified as “Company” in the DPA (the “data exporter”) and Applicant Tracking Software PO Box 697, Bartonsville, PA 18321 (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.

Clause 1

Definitions
For the purposes of the Clauses:

‘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 (1);
‘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 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;
‘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 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

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.
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 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.
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:

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 organizational 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, 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; 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 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; 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;
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
that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer¹

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 organizational 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 unauthorized access; and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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 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;
that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
that the processing services by the sub-processor will be carried out in accordance with Clause 11;
to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

¹Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

Clause 6

Liability

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.

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.

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

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:
1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
2. 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.

Clause 8

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 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.

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

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 (3). 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.

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.

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.

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

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.

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

Data exporter
The data exporter is the entity identified as “Company” in the DPA.

Data importer
The data importer is Applicant Tracking Software, a provider of online applicant tracking software as a service.

Data subjects
The personal data transferred concern the following categories of data subjects: the Data Exporter’s Users including employees and contractors; the personnel of the Data Exporter’s customers; and any Candidate who submits an application via the services who transmits data via the Applicant Tracking Software services (as defined in the Terms of Use) including individuals collaborating and communicating with the Data Exporter’s Users and Candidates.

Categories of data
The personal data transferred concern the following categories of data: personal data submitted, stored, sent or received by the Data Exporter or its Users or customers’ Users or Candidates or its customers’ Candidates via the Applicant Tracking Software services including user IDs, names, addresses, emails, documents, images, notes, and other recruiting-related data.

Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify): data submitted, stored, sent or received by Users or Candidates via the Applicant Tracking Software services.

Processing operations
The personal data transferred will be subject to the basic processing activities as defined in the Privacy and Security Policy.

Appendix 2 to the Standard Contractual Clauses

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

The technical and organizational security measures implemented by the data importer are as described in the Privacy and Security Policy.