Last Updated April 24, 2018
These Standard Contractual Clauses, including Appendix 1 and Appendix 2, shall only apply to the extent they are applicable in accordance with Salary.com’s Data Subscription Agreement (the “DSA”) or an applicable Salary.com Order Form and are incorporated into the DSA or applicable Order Form by the express terms of the DSA or applicable Order Form.
Standard Contractual Clauses: Article 26(2) of the EU Data Protection Directive 95/46/EC
For the purposes of Article 26(2) of the EU Data Protection 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 Customer, as specified in the applicable Order Form (the data exporter)
Salary.com, LLC, 610 Lincoln St, North Building, Suite 200, Waltham, MA 02451, USA (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;
- '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 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 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.
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 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.
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 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).
Clause 5: 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.
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 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.
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:
- 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.
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 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).
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: Subprocessing
- 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.
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 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.
Clause 13: Scope
The parties agree that these Clauses including all appendicies attached hereto shall only apply to personal data concerning EU data subjects exported from the European Union by the data exporter to the data importer. For clarity, these Clauses including all appendicies attached hereto shall not apply to any personal data originating outside of the European Union or provided to data importer by any entity established outside of the European Union.
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is data importer’s Customer as specified in an applicable Order Form which has a subscription to data importer’s products and/or services.
The data importer is Salary.com, LLC, a provider of compensation software-as-a-service products and related services.
The personal data transferred concern the following categories of data subjects (please specify): Data exporter’s employees and contractors.
Categories of data
The personal data transferred concern the following categories of data (please specify): Data subjects’ names, basic salary and employment information, entity data, navigational (including website usage information) data, system usage data, and other electronic data submitted, stored, sent, or received by Data importer from Data exporter through Data importer’s products or services concerning Data subjects.
Special categories of data (if appropriate)
Data exporter will not be transfering any special categories of data to Data importer.
The personal data transferred will be subject to the following basic processing activities (please specify):
- Scope of Processing: Personal data may be processed for the following purposes: (i) to provide Data importer’s products and/or services to Data exporter and/or its affiliates, (ii) to detect, prevent, and/or remedy any security, technical, or other issues arising from Data importer’s products and/or services, (iii) to respond to product and/or services support requests and/or questions, and/or (iv) as necessary to fulfill Data importer’s contractual obligations. Data exporter instructs Data importer to process personal data in countries in which Data importer or its subprocessors maintain facilities as necessary for it to provide Data importer’s products and/or services.
- Term of Data Processing: The term of any data processing will be as long as Data exporter has access to Data importer’s products and/or services and for a reasonable period of time thereafter.
- Data Deletion: The Data importer will be provided with the ability to delete data during the Term of Data Processing as specified in the applicable contract in place between Data importer and Data exporter.
- Access to Data: The Data importer will be provided with the ability to access, update, modify, correct, export, and remove data during the Term of Data Processing as specified in the applicable contract in place between Data importer and Data exporter.
- Subprocessors: The Data importer may engage third party providers to provide aspects of Data importer’s products and/or services. The Data importer will ensure such third party providers only access and use data to provide the Data importer’s products and/or services and not for any other purpose. Subject to the Clauses, Data exporter consents to Data importer engaging its affiliated companies and the third party providers specified below in order to fulfill Data importer’s contractual obligations:
- Any Salary.com, LLC affiliated organization including, but not limited to, Shangli Information Technology (Shanghai) Co., Ltd.
- Iron Mountain
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Salary.com, LLC (“Salary”) currently observes the security practices described in this Appendix 2. Salary reserves the right to update or modify these practices at its discretion provided such modifications and updates do not material degrade the protection offered by these practices. All capitalized terms not otherwise defined herein shall have the meaning as set forth in the applicable agreement between the parties.
1. General Provisions
- Scope of Application: Salary’s compensation products and services are provided through a software as a service environment (Salary’s “Products”). Salary provides the hardware, network, servers, and data center services for its production environment in a tier 3 data center facility (the “Hosting Environment”).
- Application Security: The Products incorporate a number of security features, such as session encryption, user authentication, password expiration, account lockout, and password reset, which are intended to help protect customers’ data from unauthorized access.
- Privacy Protection: Salary may hold customer data and processes it on behalf of customers. In this data processor role, Salary protects the security, confidentiality, and privacy of customer data, including personal identifiable information, with appropriate and technical organizational measures. Customers have a responsibility to manage and control the data and access to the data that they collect in a way that complies with privacy laws and regulations.
2. Security Practices
- Information Security Program: Salary maintains a written information security program that establishes roles and responsibilities for information security, and supports the confidentiality, integrity, and availability of Information Processing Systems operated by Salary.
- Security Policies: Salary implements and maintains information security policies that define requirements for access control, application and system development, passwords, remote access, data classification, operational security, network security and physical security. The information security policies will be reviewed annually, or when significant changes to the environment occur, to ensure their continuing suitability, adequacy, and effectiveness.
- Separation of Duties: Salary separates support roles and responsibilities for privileged access rights to applications, databases, systems, and security mechanisms with the least privilege required to perform each function.
- Separation of Computing Layers: The Hosting Environment is partitioned into Web and Database layers with additional protections for database systems.
- Physical Security: Salary works with a reputable co-location provider to provide the physical security of the Hosting Environment in its tier 3 data center facility. The co-location vendor provides the surveillance, access control, and environmental control.
- Network Security: Salary maintains multiple layers of defense for production systems, including firewalls, network intrusion prevention, and host-based protections.
- Logical Access Control: Salary implements logical access controls with unique IDs, password complexity, strong (i.e. two-factor) authentication for remote access to production systems, and promptly revoking or changing access in response to terminations or changes in job functions.
- System Security: Salary implements detection, prevention, and recovery controls to protect against malicious software. Salary also deploys anti-malware mechanisms and ensure the anti-malware mechanisms are updated regularly. Salary employs a process to review system patches using a risk-based approach and apply them in a timely manner.
- Security Assessment: Salary will assess its security policies, processes, and information systems on a regularly basis. Salary will remediate security findings or risks within a reasonable time frame.
3. Other Practices
- Business Continuity and Disaster Recovery: Salary maintains a business continuity and disaster recovery plan to ensure the continued availability of information assets, systems and processes. The plan involves regular data backups, data replication, and redundant sites and systems if applicable. This plan will be tested on a regular basis.
- Retention and Disposal: Any data stored on Salary’s backup media is encrypted using industry standard. Backup media are sent off-site regularly to a reputable backup vault provider. If Salary retires any electronic media containing Customer data, the media will be securely destroyed or erased following industry standard.
- Security Incident Handling: Salary implements incident handling process to categorize and respond to security incidents. If Salary becomes aware of any security incident involving the unlawful access of customer data stored within its Hosting Environment, Salary will notify any affected customers within a reasonable time frame after confirmation of such security incident and, on request, provide such customers with reasonable information concerning such security incident. Any notification of a security incident will be in a manner determined by Salary, including by email or telephone.