Data Processing Addendum

This Data Processing Addendum (“DPA”) addresses the processing of customer personal information in compliance with the CCPA and/or Personal Data in accordance with the requirements of EU Data Protection Laws. 

Insofar as Criteria Corp and its customers have both agreed to abide by applicable privacy laws, for the Standard Contractual Clauses to be valid, it must be signed by both the customer (the Data Controller) and Criteria Corp (the Data Processor).  As specified in Criteria Corp terms and condition of use, all customers are bound by the terms of this DPA, however if a customer does not complete and sign this DPA, the SCC will not be valid and it will be assumed that customer is not using Criteria services with residents of the EU and that it does not intend to do so in the future. 

Click this link to electronically complete and sign the DPA --> 

https://na2.docusign.net/Member/PowerFormSigning.aspx?PowerFormId=c357365f-905b-4189-b82c-33c1bc4a2a41&env=na2&acct=a777aa0b-8c1a-4f46-bb0f-425352414900&v=2

 

Criteria Data Processing Addendum

(Including Criteria Corp, Revelian Pty, Ltd, and Alcami Interactive Pty, Ltd.)

Revised: 07 December 2020

SECTION A. GENERAL TERMS

1.1       This Data Processing Addendum ("DPA") is supplemental to the Agreement (comprising the Order and Criteria Terms of Use or other written or electronic agreement) (“Agreement”) separately entered into  between CRITERIA CORP (“Criteria,” “us” or “we”) and Customer (each, a “Party,” and collectively, the “Parties”) for the provision of the Service and establishes additional responsibilities of the Parties for the Processing of Customer Personal Information in compliance with the CCPA and/or Personal Data in accordance with the requirements of EU Data Protection Laws.  If the entity signing this DPA is not a party to any Agreement, then this DPA is not valid and is not legally binding.   

1.2       This DPA supplements the current Agreement with Customer and will terminate automatically upon termination of the Agreement, unless earlier otherwise terminated pursuant to its terms. 

1.3       The Customer will act as a single point of contact for its Affiliates with respect to compliance of applicable privacy laws in accordance with this DPA.  If CRITERIA provides information or notice to the Customer under this DPA, such information or notice will be deemed received by the Customer’s Affiliates. The Parties acknowledge and agree that any claims in connection with this DPA will be brought by the Customer, whether acting for itself or on behalf of an Affiliate.

1.4       This DPA will be effective only if it is executed and submitted to CRITERIA as described on this page and all items identified as “Required” in the table are completed accurately and in full. If Customer makes any deletions or other revisions to this DPA not otherwise agreed in writing by CRITERIA, then the revisions will be null and void.

1.5       This DPA consists of:

  • The main body of this DPA.
  • Schedule 1: Details of Personal Data
  • Attachment 1: Standard Contractual Clauses
  • Appendix 1 to the Standard Contractual Clauses, which describes CRITERIA’s data processing activities.
  • Appendix 2 to the Standard Contractual Clauses, which describes CRITERIA’s security technical and organizational measures for Personal Data.
  • Schedule 2: Subprocessors

By executing the DPA, Client is agreeing to all parts of this DPA.

1.6      In the event of any conflict between an Order, the DPA and/or the Agreement, the following order of precedence will apply (in descending order): (1) the DPA, (2) the Agreement, and (3) the Order. No other terms or contract relating to Customer personal information will be valid or enforceable.

1.7      Any provision of this DPA that is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions. The parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute and then incorporate such substitute provision into this DPA.

1.8       All capitalized terms are defined below.

SECTION B. CCPA PERSONAL INFORMATION PROCESSING (CALIFORNIA)

1.  GENERAL

To the extent CRITERIA is required to Process CCPA Personal Information on behalf of Customer, the following terms in this Section B shall apply.

1.1       Role of the Parties

For the purposes of the CCPA, the Parties acknowledge and agree that CRITERIA will act as a “Service Provider” as such term is defined in the CCPA, in its performance of its obligations pursuant to this DPA or the Agreement. CRITERIA shall be referred to as “Service Provider” throughout this Section B. The Customer will act as a single point of contact for its Affiliates with respect to CCPA compliance, such that if Service Provider gives notice to the Customer, such information or notice will be deemed received by the Customer’s Affiliates. The Parties acknowledge and agree that any claims in connection with the CCPA under this DPA will be brought by Customer, whether acting for itself or on behalf of an Affiliate.

1.2       Definitions

Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the entity;

CCPA” means the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq., including any amendments and any implementing regulations thereto that become effective on or after the effective date of this DPA.

CCPA Consumer” means a “consumer” as such term is defined in the CCPA.             

CCPA Personal Information” means the “personal information” (as defined in the CCPA) that the Service Provider Processes on behalf of the Customer and/or Customer’s Affiliates in connection with the Service Provider’s provision of the Service;

Data Processing Services” means the Processing of CCPA Personal Information for any purpose permitted by the CCPA, such as for a permitted “business purpose,” as such term is defined in the CCPA, or for any other purpose expressly permitted by the CCPA;

Processing” has the meaning given in the CCPA, and “Process” will be interpreted accordingly;

Sell” means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, CCPA Personal Information by the Supplier to another business or a third party for monetary or other valuable consideration

Services” means the assessment services and any other services provided by Service Provider to the Customer under the Agreement, including the Data Processing Services;

Subprocessor” means any subcontractor engaged by Service Provider who Processes CCPA Personal Information on behalf of Service Provider.

2. CCPA PERSONAL INFORMATION PROCESSING

2.1       Instructions for CCPA Personal Information

Customer and Service Provider agree and acknowledge that Service Provider is authorized to use, retain and disclose CCPA Personal Information for the delivery of Services to Customer in accordance with the Agreement, including: (i) disclosures to Subprocessors; (ii) for Criteria’s business purposes and (iii) as authorized by the CCPA. Processing CCPA Personal Information outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and the Service Provider on additional instructions for Processing.

2.2       Required Consents and Notices

The Customer is responsible for complying with the CCPA in connection with the collection, use and storage of CCPA Personal Information and will ensure that it obtains all necessary consents, and provides all necessary notices, for the lawful Processing of CCPA Personal Information by the Service Provider in accordance with the Agreement.

3. TRANSFER OF CCPA PERSONAL INFORMATION

3.1       No Disclosure of CCPA Personal Information

Except for permitted disclosures to Subprocessors pursuant to similar terms as this DPA, the Service Provider shall not disclose, release, transfer, make available or otherwise communicate any CCPA Personal Information to another business or third party without the prior written consent of the Customer. Notwithstanding the foregoing, nothing in this Agreement shall restrict the Service Provider’s ability to disclose CCPA Personal Information to comply with applicable laws or as otherwise permitted by the CCPA.

3.2       No Sale of CCPA Personal Information

The Service Provider shall not Sell any CCPA Personal Information to another business or third party without the prior written consent of the Customer.

4. CONSUMER RIGHTS REQUESTS

4.1       CCPA Consumer Rights Requests

On and after the effective date of the CCPA, Service Provider shall comply with all applicable requirements of the CCPA. Subject to a detailed written request by Customer and where possible, Service Provider shall assist Customer with responding to CCPA Consumer Rights Requests as required by applicable CCPA requirements.

4.2       Notice of Requests

The Service Provider shall promptly notify the Customer of any verified request received by the Service Provider from a CCPA Consumer or authorized representative enforcing available rights in respect of the CCPA Personal Information of the CCPA Consumer. Service Provider shall direct such CCPA Consumer or authorized representative to contact the Customer.

SECTION C. PERSONAL DATA PROCESSING (EUROPEAN ECONOMIC AREA)

1.  GENERAL

To the extent CRITERIA is required to Process Personal Data on behalf of Customer, the following terms in this Section C shall apply.

1.1       Role of the Parties

For the purposes of the EU Data Protection Laws, the Parties acknowledge and agree that CRITERIA acts as a “Processor” and “Data Importer” and the Customer and/or Customer’s Affiliates act as “Controllers” and “Data Exporters.” CRITERIA shall be referred to as “Processor” throughout this Section C. Customer acknowledges that it has exclusive control and responsibility for determining the means and purposes and what Personal Data Customer submits to the Service and warrants it has all authority, grounds, rights and consents and permissions for submission and transfer of Personal Data and Processing by CRITERIA under the Agreement and this DPA. The subject-matter and duration of the processing, the nature and purpose of the processing, the type of Personal Data and categories of data subjects shall be as set out in Schedule 1 (which may be updated by the parties in writing from time to time) and the Customer confirms it is accurate.

2          DEFINITIONS

2.1      Unless otherwise set out below, each capitalised term in this Section C shall have the meaning set out in the Agreement and the following capitalised terms used in this DPA shall be defined as follows:

  1. Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the entity.
  2. "Personal Data" means the “personal data” (as defined in the GDPR) described in Schedule 1 and any other personal data that Processor Processes on behalf of Customer or Customer's Affiliate in connection with Processor's provision of the Services;
  3. "EU Data Protection Laws" means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") and all applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of Personal Data as amended, extended or reenacted from time to time and all orders, regulations, statutes, instruments or other subordinate legislation made thereunder in the European Union (“EU”), the European Economic Area and their member states, Switzerland, and the United Kingdom (“UK”) from time to time;
  4. "European Economic Area" or "EEA" means the member states of the European Union together with Iceland, Norway, and Liechtenstein;
  5. “Security Documentation” means the information provided to Customer by CRITERIA regarding its data security technical and organizational measures attached to the Standard Contractual Clauses as APPENDIX 2 and as may be updated by CRITERIA from time to time.
  6. "Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data that could reasonably require notification under EU Data Protection Laws;
  7. Standard Contractual Clauses” means the annex found in EU Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of Personal Data from the EEA to processors established in third countries under Directive 95/46/EC of the European Parliament and of the European Council (available as of May 2020 at https://eur-lex.europa.eu/eli/dec/2010/87/oj), completed as described in Section 8 below (“Additional Terms for Transfer of Personal Data from the EEA and the United Kingdom”). A copy of the Standard Contractual Clauses is attached to this DPA as Attachment 1.
  8. "Subprocessor" means any person or legal entity engaged by Processor who agrees to receive from Processor any Customer Personal Data;
  9. User” means Customer staff, Customer job applicants and other Customer representatives that use the Service; and
  10. the terms "personal data", "Controller", "Processor", "Data Subject", "Process" and "Supervisory Authority" shall have the same meaning as set out in the GDPR.

3          DATA PROCESSING

3.1      Instructions for Data Processing. Processor will only Process Customer Personal Data in accordance with (a) the Agreement, to the extent necessary to provide the Service to the Customer, and (b) the Customer's written instructions, unless Processing is required by European Union or member state law to which Processor is subject, in which case Processor shall, to the extent permitted by applicable law, inform the Customer of that legal requirement before Processing that Personal Data. Customer hereby acknowledges and agrees that by virtue of using the Services it gives CRITERIA instructions to process and use Personal Data in order to provide the Services in accordance with the Agreement and as described in Appendix 1 to the Standard Contractual Clauses and for the following purposes: (i) Processing in accordance with the Agreement and applicable Orders, (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by User (e.g. via email or support tickets) where such instructions are consistent with the terms of the Agreement. Customer takes full responsibility to keep the amount of Personal Data provided to CRITERIA to the minimum necessary for the performance of the Services.

3.2      Other Processing Activities. Processing outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and Processor on additional instructions for Processing.

3.3      Customer’s Processing of Personal Data. Customer will, in its use of the Services, comply with EU Data Protection Laws. For the avoidance of doubt, Customer’s instructions to CRITERIA for the Processing of Personal Data must comply with EU Data Protection Laws. Customer has sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.

3.4      Required consents. Where required by applicable EU Data Protection Laws, Customer will be responsible for ensuring that all Data Subjects have given/will give all necessary consents for the lawful Processing of Personal Data by the Processor in accordance with the Agreement.

3.5      Privacy notices. Customer warrants and represents that:

a.   it has provided all applicable notices to Data Subjects required for the lawful Processing of Personal Data by the Processor in accordance with the Agreement; or

b. in respect of any Personal Data collected by the Processor on behalf of the Customer, it has reviewed and confirmed the notices provided by the Processor to Data Subjects as accurate and sufficient for the lawful Processing of Personal Data by the Processor in accordance with the Agreement.

3.6      Indemnity. Customer agrees to indemnify the Processor and its officers, directors, employees, agents, affiliates, successors and permitted assigns (each an "Indemnified Party", and collectively the "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees and court fees, that are incurred by the Indemnified Parties (collectively, "Losses") arising out of any third party claim brought against the Processor relating to or arising out any instructions given by the Customer to the Processor under paragraph 3.1, any failure to obtain the consents under paragraph 3.4, any breach by the Customer of the warranty in paragraph 3.5 or any other breach by the Customer of any EU Data Protection Laws.

4          SUB-PROCESSORS

4.1      Authorised Subprocessors. The Customer agrees that Processor may use the parties listed on Schedule 2 (as updated from time to time in accordance with this Agreement) as Subprocessors to Process Personal Data.

4.2      The Customer agrees that the Processor and Processor’s Affiliates may respectively engage any third parties to fulfill the contractual obligations under the Agreement, including the processing of Personal Data. The Processor shall notify the Customer from time to time of the identity of the Subprocessors it engages, and the respective services the Subprocessors provide. Processor may make the Subprocessor information and updates available via its website. 

4.3      If the Customer (acting reasonably) does not approve of a new Subprocessor, then without prejudice to any right to terminate the Agreement, Customer will notify CRITERIA in writing within 10 business days after receipt of CRITERIA’s notice. CRITERIA will use reasonable efforts to (i) move the Personal Data to another Subprocessor, (ii) recommend a commercially reasonable change to Customer’s use of the affected Services to avoid processing of Personal Data by said new Subprocessor, or (iii) work with the Subprocessor to ensure that any subprocessing is performed in a manner reasonably satisfactory to Customer. CRITERIA will use all reasonable efforts to address Customer’s concerns within a reasonable timeframe following receipt of Customer’s request.

4.4      Save as set out in clauses 4.1 and 4.2, the Processor shall not permit, allow or otherwise facilitate Subprocessors to Process Personal Data without the prior written consent of Customer and unless Processor enters into a written agreement with the Subprocessor which imposes obligations no less protective than the obligations of this DPA.

4.5      Liability of Subprocessors. The Processor shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to the Customer for the acts and omissions of any Subprocessor approved by the Customer as if they were the acts and omissions of Processor.    

5          DATA SECURITY, AUDITS AND SECURITY NOTIFICATIONS

5.1       Controls for the Protection of Personal Data. 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, Processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including the measures set out in the Security Documentation.

5.2       Audits.  Upon request by the Customer, and subject to the confidentiality obligations set forth in the Agreement and this DPA, Processor shall make available to Customer (or Customer's independent, third-party auditor) all information reasonably necessary to demonstrate compliance with Article 28 of the EU Data Protection Laws and/or this DPA specific to Personal Data.  Customer may request an on-site audit of Processor’s policies, procedures, and controls relevant to the protection of Personal Data, but only to the extent required under applicable EU Data Protection Law and up to one time every 12 months. Customer must provide at least 6 weeks’ prior notice to Processor of a request for such an audit. Customer shall reimburse Processor for any time expended for any such on-site audit at Processor’s then-current rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Processor shall mutually agree upon the scope, timing, and duration of the audit, in addition to the reimbursement rate for which Customer shall be responsible. Customer shall promptly notify Processor regarding any non-compliance discovered during the course of an audit, and Processor shall use commercially reasonable efforts to address any confirmed material non-compliance. In the event that Customer requests an audit within thirty (30) days following a confirmed Security Incident, Processor will waive the applicable audit fees.

5.3       Security Incident Notification. Processor maintains policies and procedures intended to manage Security Incidents, including detailed escalation procedures as further described in the Security Documentation.  If Processor or any Subprocessor becomes aware of a Security Incident, Processor will to the extent required and as permitted by law: (a) notify the Customer of the Security Incident within 72 hours, (b) investigate the Security Incident and provide such reasonable assistance to the Customer (and any law enforcement or regulatory official) as required to investigate the Security Incident, and (c) take steps to remedy any non-compliance with this DPA.

5.4       Processor Employees and Personnel. Processor shall treat the Personal Data as the Confidential Information of the Customer, and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of Personal Data.

6          ACCESS REQUESTS AND DATA SUBJECT RIGHTS

6.1       Data Subject Requests. Save as required (or where prohibited) under applicable law, Processor shall notify Customer of any request received by Processor or any Subprocessor from a Data Subject in respect of their personal data included in the Personal Data, and shall not respond to the Data Subject.

6.2       Processor shall provide Customer with the ability to correct, delete, block, access or copy the Personal Data in accordance with the functionality of the Service.

6.3       Government Disclosure. Processor shall notify Customer of any request for the disclosure of Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.

7          ASSISTANCE

7.1       Where applicable, taking into account the nature of the Processing, and to the extent required under applicable EU Data Protection Laws, the Processor shall provide the Customer with any information or assistance reasonably requested by the Customer for the purpose of complying with any of the Customer's obligations under applicable EU Data Protection Laws, including:

a. reasonable endeavours to assist Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising Data Subject rights laid down in the GDPR; and

b. providing reasonable assistance to the Customer with any data protection impact assessments and with any prior consultations to any Supervisory Authority of the Customer, in each case solely in relation to Processing of Personal Data and taking into account the information available to Processor.

7.2       The Customer shall (at its own cost) provide assistance requested by CRITERIA in relation to the fulfilment of the CRITERIA obligation to cooperate with the relevant supervisory authority under EU Data Protection Laws. Notwithstanding any other provision of this DPA or the Agreement, CRITERIA shall be entitled to respond to and provide all relevant information in respect of requests or orders issued by such supervisory authority.

8.         TERMS FOR TRANSFER OF PERSONAL DATA FROM THE EEA AND THE UK

8.1       All Processing of Personal Data in countries which do not ensure an adequate level of data protection per the European Commission’s decision of 5 February 2010 is on the basis of and subject to the Standard Contractual Clauses. For the purpose of the Standard Contractual Clauses, this DPA and the Agreement are the complete and final instructions of Customer (Data Exporter) to CRITERIA (Data Importer) for the Processing of Personal Data. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the Data Exporter hereby instructs the Data Importer to process Personal Data: (a) in accordance with the Agreement; (b) at the request of Data Exporter, including via the Services; and (c) as initiated by Data Subjects accessing the Services for or at the instruction of Data Exporter. For the purposes of Clause 5(h) of the Standard Contractual Clauses, Data Exporter consents to Data Importer’s use of Subprocessors in accordance with Section 4 of this DPA. The parties agree that Data Importer’s satisfaction of its obligations in Sections 5 and 6 will be deemed to satisfy its obligations under Clause 12(1), and that the certification of deletion of Personal Data described in Clause 12(1) will be provided upon Data Exporter’s written request.

8.2       The Standard Contractual Clauses are hereby deemed completed as follows: (i) the Data Exporter is the Customer, and the Data Exporter’s contact information is set forth in the signature block below; (ii) the Data Importer is CRITERIA CORP, and CRITERIA’s contact information is set forth in the signature block below; (iii) Appendices 1 and 2 of the Standard Contractual Clauses are set forth below. By entering into this DPA, the parties are deemed to be signing the Standard Contractual Clauses.         

8.3       In addition, Customer acknowledges that the Processor or its Subprocessors may access the Personal Data outside such other countries as may recognize and authorize such transfers in accordance with the EU-US Privacy Shield, provided that Processor maintains its certification to the EU-US Privacy Shield.

8.4       If applicable to Customer and to the extent required following the UK’s departure from the European Union, Customer will work with CRITERIA to execute the necessary agreements or arrangements to legitimize the transfer of Personal Data from the UK.

9          DURATION AND TERMINATION

9.1       Deletion of data. Subject to 9.2 and 9.3 below, Processor shall, following written request from Customer and within 90 (ninety) days:

  1.  make available to Customer a complete copy of all Personal Data by secure transfer in such a format as notified by Customer to Processor; and
  2. delete and use all reasonable efforts to procure the deletion of all other copies of Personal Data Processed by Processor or any Subprocessors, according to instructions under section 9.2.

9.2       Subject to section 9.3 below, Customer may in its absolute discretion notify Processor in writing within 30 (thirty) days of the date of termination of the Agreement to require Processor to delete and procure the deletion of all copies of Personal Data Processed by Processor. Processor shall, within 90 (ninety) days of the date of termination of the Agreement:

  1. comply with any such written request; and
  2. use all reasonable endeavours to procure that its Subprocessors delete all Personal Data Processed by such Subprocessors, and, where this section 9.2 applies, Processor shall not be required to provide a copy of the Personal Data to Customer.

9.3       Processor and its Subprocessors may retain Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that Provider shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

IN WITNESS WHEREOF, the parties have caused this Data Processing Addendum to be duly executed, incorporating the DPA Information Summary from the first page. Each party warrants and represents that its respective signatories whose signatures appear below are on the date of signature duly authorized.

CUSTOMER:

 

CRITERIA CORP

Authorized Signature

 

Authorized Signature

Name

 

David Sherman

Title

 

Chief Operating Officer

 

Schedule 1

 

DETAILS OF THE PROCESSING OF PERSONAL DATA

 

Subject Matter of Processing

Use and access of the web-based, platform pre-employment assessment services (“Service”) in accordance to the Agreement

Duration of Processing

The Term, as defined in the Criteria Agreement, subject to paragraphs 9.2 and 9.3 of the DPA

 

Nature and Purpose of Processing Types of Personal Data

Provision of the Service

Types of Personal Data

  • Personal Data of Staff that use the Service:
    • First and last name
    • Title
    • Position
    • Employer
    • Physical business address
    • Email
    • usage information
  • Personal Data of Applicants that use the Service:
    • First and last name
    • Email
    • Location
    • IP address
    • operating system type and version
    • unique device ID
    • browser and browser language
    • domain and other operating systems or platform
    • job skills, goals, and role (optionally provided by Applicant or Customer)
  • any other Personal Data which Customer, its Affiliates or users enter into the Service

Categories of Data Subjects

  • Users authorized or requested by Customer (data exporter) or an Affiliate to use the Service, consisting of:
    • Employees, independent contractors, agents, or other contact persons of Customer (data exporter) and its Affiliates (“Customer Staff”); and
    • Job applicants of Customer (data exporter) or an Affiliate (“Customer Applicants”)

 

Obligations and rights of the Customer

 

 

 

The obligations and rights of the Customer are as set out in this DPA.

 

Attachment 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

Name of the data exporting organisation: (See Appendix 1)

Address: …

Tel. …; fax …; e-mail: …

(the data exporter)

 

And

 

Name of the data importing organisation: CRITERIA CORP, is a web-based pre-employment assessment provider which Processes Personal Data for the purpose of providing the Service to the data exporter

Address: 750 N San Vicente Blvd, Suite 1500 East Tower, West Hollywood, CA 90069,

Tel. +1 (877) 909-8378; UK: 08000 14268

e-mail: help@criteriacorp.com

(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:

(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 (1);

(b)

‘the data exporter’ means the controller who transfers the personal data;

(c)

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

(d)

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

(e)

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

(f)

‘technical and 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

1.

The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2.

The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3.

The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

4.

The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a)

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

(b)

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

(c)

that the data importer will provide sufficient guarantees in respect of the technical and 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 sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h)

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

(i)

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

(j)

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

Clause 5

Obligations of the data importer  (2)

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

(h)

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

(i)

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

(j)

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

Clause 6

Liability

1.

The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

2.

If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

3.

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

Clause 7

Mediation and jurisdiction

1.

The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a)

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

(b)

to refer the dispute to the courts in the Member State in which the data exporter is established.

2.

The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1.

The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2.

The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3.

The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9

Governing law

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

Clause 10

Variation of the contract

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

Clause 11

Sub-processing

1.

The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clause. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

2.

The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

3.

The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely …

4.

The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data-processing services

1.

The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2.

The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

 

 

Appendix 1 to the Standard Contractual Clauses

Subject Matter and Details of the Data Processing

           

Data exporter

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

Data exporter is the legal entity that has executed these Standard Contractual Clauses as a Data Exporter that has purchased the Service.

Data importer

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

Data importer, CRITERIA CORP, is a web-based pre-employment assessment provider which Processes Personal Data for the purpose of providing the Service to the data exporter.                                                                           

Data subjects

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

Data exporter may submit Personal Data to CRITERIA, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

  • Users of the Service as the data exporter authorizes, including:
    • Staff of data exporter, including employees, independent contractors, and agents of data exporter or its affiliates
    • Job applicants of the data exporter

Categories of data

The personal data transferred concern the following categories of data (please specify):
Data exporter may submit Personal Data to CRITERIA, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

  • Personal Data of staff:
    • First and last name
    • Title
    • Position
    • Employer
    • Physical business address
    • Email
    • usage information
    • any other Personal Data the Customer, its Affiliates and/or staff submit in the course of their use of the Service
  • Personal Data of job applicants:
    • First and last name
    • Email
    • Location
    • IP address
    • operating system type and version
    • unique device ID
    • browser and browser language
    • domain and other operating systems or platform
    • job skills, goals, and role (optionally provided by Applicant or Customer)
  • or such other categories Personal Data which Customer, its Affiliates or users enter into the Service

 

CRITERIA CORP will make additional technical information available to Customer upon request, such as details available in its Privacy Policy: https://www.criteriacorp.com/privacy-policy

Special categories of data (if appropriate)

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

N/A

Processing operations

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

(i) Processing in accordance with the Agreement and applicable Order(s);

(ii) Processing initiated by Users in their use of the Services;

(iii) Processing to comply with other documented reasonable instructions provided by User (e.g., via email or support tickets) where such instructions are consistent with the terms of the Agreement.
 

DATA EXPORTER:

 

DATA IMPORTER: CRITERIA CORP

Authorized Signature

 

Authorized Signature

Name:

 

David Sherman

Title:

 

Chief Operating Officer

 

APPENDIX 2

TECHNICAL AND ORGANISATIONAL SECURITY MEASURES

 

1.         Policies & Procedures.         Processor maintains internal policies and procedures, or procures that its Subprocessors do so, which are designed to:

  1. secure any personal data Processed by Processor against accidental or unlawful loss, access or disclosure;
  2. identify reasonably foreseeable and internal risks to security and unauthorised access to the personal data Processed by Processor; and
  3. minimise security risks, including through risk assessment and regular testing.

Processor’s policies and procedures require, among other things, (i) establishing appropriate levels of security for personal data, (ii) employees and Subprocessors who process personal data on behalf of Processor to read and comply with Processor’s confidentiality terms and Processor’s Cyber Security Policies which are NIST CSF v.1.1 compliant, and

(iii) Subprocessors who may have access to personal data are required to execute data protection agreements that meets or exceeds Processor’s standard DPA.  

2.         Certifications.

SOC/ISO27001.  Processor uses Amazon Web Services (“AWS”) as its hosting service provider.  AWS provides third-party attestations, certifications, Service Organization Controls (SOC) reports and other relevant compliance reports, including SOC and ISO27001, directly under NDA via the following website- https://aws.amazon.com/artifact/.

NIST Certification. Processor’s corporate office is NIST CSF v1.1 self-certified.

3.         Monitoring & Management. Processor will, and will use reasonable efforts to procure that its Subprocessors, conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.

Security areas covered in Processor’s Cyber Security Policies include:

• Acceptable Use Policy

• Asset Management Policy

• Backup and Recovery Policy

• Change Management Policy

• Confidential Data Policy

• Data Classification Policy

• Data Retention and Disposal Policy

• Encryption Policy

• Incident Response Policy

• Malware Protection Policy

• Mobile Device Policy

• Network Access and Authentication Policy

• Network Security Policy

• Password Policy

• Patch Management Policy

• Personnel Security Policy

• Physical Security Policy

• Privacy Policy

• Remote Access Policy

• Risk Management Policy

• Secure Development Lifecycle Policy

• Secure Workspace Policy                

4.         Security

Processor will, and will use reasonable efforts to procure that its Subprocessors, periodically evaluate the security of their network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

Processor contracts annually with two industry respected cyber security companies for both manual and automated vulnerability assessments and penetration testing of

its applications. Processor’s penetration testing provider conducts regular penetration testing providing a comprehensive and fully detailed report with all findings (critical, high, medium, and low) as well as remediation procedures for Processor’s immediate action.

5.         Data Encryption. Processor uses industry-standard encryption products to protect personal data and communications Processed by Processor during transmissions between a Controller and Processor, including management of public keys. All data in transit between Controller and Processor is encrypted using HTTPS/TLS. Data at rest is stored in a unique non-readable binary format and subject to AES 256- bit full disk encryption.

6.         Backup and Restoration. All onsite data is held on redundant encrypted SAN using industry standard encryption technology. Data is also streamed in near real-time to an offsite backup and disaster recovery center via IPSec tunnel. Backed up data is stored using industry standard encryption technology. In the event that data needs to be restored, the onsite SAN backups would be used first.

7.         Disaster Recovery. Disaster recovery plans are in place and tested at least once per year. Processor utilizes disaster recovery facilities that are geographically remote from their primary data centers, along with the required hardware, software, and Internet connectivity. In the event production capabilities at the primary data centers were rendered unavailable, the disaster recovery hosting facilities would be enabled and brought online. As personal data is already streamed and held at these same facilities, recovery time would be minimized.

8.         Updates.  Processor may change these Technical and Organisational Measures at any time without notice by keeping a comparable or better level of security.  During the term of the Service, individual measures described in this Appendix 2 may be replaced with new measures that serve the same purpose without materially diminishing the overall security of the Processor’s Service.

DATA EXPORTER:

 

DATA IMPORTER: CRITERIA CORP

Authorized Signature

 

Authorized Signature

Name:

 

David Sherman

Title:

 

Chief Operating Officer

 

Schedule 2

Please email dpa [at] criteriacorp.com to request a copy of the Criteria Corp subprocessors.