Updated September 24,2020
This is an addendum to the Terms of Service accessible at https://breezy.hr/terms. This Data Processing Agreement (DPA) between Breezy HR, Inc. (“Breezy HR”) and you, a client of Breezy HR (“You”, or “Your”) shall only apply to the extent that GDPR is applicable to the Services, and may be updated by Breezy HR from time to time.
1.1 As part of the Services, Breezy HR processes certain personal data as defined in the GDPR on Your behalf. The parties agree that You shall in this regard be considered the data controller and Breezy HR the data processor. For clarity, the meaning of data controller and data processor shall be as defined in the GDPR.
1.2 The nature and purpose of the personal data processing by Breezy HR hereunder shall comprise the storage of Your personal data in the Breezy HR application (“Application”) as stated in the Agreement, and such further processing as reasonably required for You to use and operate, and for Breezy HR to support, the Application for the term of, and in accordance with, the Agreement. The provision of Support to the You or Your support contacts as outlined in the Agreement may involve Breezy HR accessing Your personal data to the extent reasonably required to provide such support.
1.3 The categories of personal data generally included in the processing hereunder may, depending on the Your use of the Application, include users and/or applicants names, email addresses, address, phone number, job titles, CV, internal comments, as well as any other applicable recruitment data;
2.1 You, as data controller:
2.1.1 confirm that You have processed and will continue to process the relevant personal data in accordance with the relevant provisions of the GDPR and the processing does not violate the GDPR;
2.1.2 will reasonably instruct Breezy HR throughout the duration of the Agreement to process the relevant personal data exclusively on Your behalf and in accordance with the GDPR;
2.1.3 will ensure that You are entitled to transfer the relevant personal data to Breezy HR so that Breezy HR may lawfully process the personal data in accordance with the Agreement on Your behalf;
2.1.4 shall take and maintain throughout the term of the Agreement appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage, including, but not limited to ensuring that you keeps the Application up to date through timely requesting Breezy HR for updates and upgrades.
3.1 Breezy HR, as data processor shall:
3.1.1 process any of Your personal data only on Your instructions. The Parties agree that the documented instructions are set out in the Agreement or may otherwise be agreed in connection with the performance of the Agreement, such as pursuant to any support requests raised by You;
3.1.2 ensure that any of its staff authorized to process Your personal data are bound by obligations of confidentiality;
3.1.3 implement appropriate technical and operational measures to ensure a level of security appropriate to the general risks involved in the Services reasonably known to it as required by Article 32 of the GDPR;
3.1.4 taking into account the nature of the processing, assist You by implementing appropriate technical and organizational measures, in so far as this is reasonably possible, for the fufillment of the Your obligation to respond to requests for exercising the data subject’s (as defined in the GDPR) rights laid down in Chapter III of the GDPR;
3.1.5 where such cannot be achieved by You directly through functionality included in the Application, each time reasonably assist You (each time subject to a reasonable cost-covering charge) in fulfilling Your obligations to respond to requests for exercising the data subject’s rights set out in Chapter III of the GDPR;
3.1.6 at Your reasonable request, provide to You a copy of all relevant personal data held by it in the format and on the media agreed, provided that a reasonable use policy shall apply (beyond which, Breezy HR shall be entitled to charge You its relevant professional services charges);
3.1.7 reasonably assist You in ensuring compliance with the obligations set out in Addendum and contained in Articles 32 to 36 of the GDPR, taking into account the nature of the processing and the information available to Breezy HR;
3.1.8 comply with its obligations under Article 28(4) of the GDPR;
3.1.9 make available to You all information reasonably necessary and, at Your cost and subject to prior agreement on scope and timing, contribute to audits and inspections reasonably carried out by You or on Your behalf to demonstrate Breezy HR’s compliance with Article 28 of the GDPR and this Addendum; and
3.1.10 inform the You if, in Breezy HR’s opinion any instruction provided by You would infringe the GDPR.
4.1 Breezy HR shall use the following sub-processors in the provision of the services:
4.2 Where Breezy HR intends to make changes to the use of any of its sub-processors, this Addendum shall be updated 30 days prior to the date of the appointment of the new processor. You shall be responsible for ensuring they regularly check this list for changes. Where You object to such a change (acting reasonably), You shall notify Breezy HR prior to the appointment date of the new processor. In such case, Breezy HR and You shall meet in good faith, and if no agreement can be found, You shall during a reasonable timeframe be entitled to terminate the Agreement on no less than 30 days’ written notice;
5.1 Breezy HR will promptly inform You after becoming aware of a data breach which has effected your personal data. Breezy HR will investigate the data breach without undue delay, and will take measures to correct the breach including implementing additional technical and organizational measures. Breezy HR will keep You up to date on the progress of the investigation and corrections. Breezy HR will provide you with reasonable assistance in relation to any legal obligations that you are subject to in relation to the breach.
5.2 Breezy HR will promptly inform You if it becomes aware that any of the relevant personal data are lost or destroyed or become damaged, corrupted or unusable. Where reasonably possible, and where caused by Breezy HR’s fault or negligence, Breezy HR will restore such personal data at its own expense;
6.1 At Your option, on or shortly after expiry or earlier termination of the Agreement, Breezy HR shall either delete or return to You all of Your personal data, in accordance with its applicable standard policies, provided that Breezy HR shall be entitled to keep one (1) back up copy of the data for a period of up to twelve (12) months following termination;
7.1 Where the Services comprise the transfer of Your personal data outside of the European Economic Area, in accordance with the requirements included in the GDPR, the parties agree on the use of the Standard Contractual Clauses, included in Attachment A below and incorporated into this Addendum by reference, as the transfer mechanism
Standard Contractual Clauses (processors)
WHEREAS, Customer (“Data Exporter”) and BREEZYHR (“Data Importer”) have entered into the Agreement;
WHEREAS, the Agreement necessitates the transfer of personal data, as defined herein, from the Data Exporter to the Data Importer and the processing of the personal data by the Data Importer on behalf of the Data Exporter;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
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 organization:
The applicable client of BREEZYHR, making use of BREEZYHR’s services and requiring the transfer of data outside of the EEA for the provision of the services.
(the data exporter)
Name of the data importing organisation (s):
BREEZYHR with registered offices at 1534 Oak St #301, Jacksonville, FL 32204
(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.
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
THE DATA IMPORTER MAY NOT SUBCONTRACT ANY PART OF ITS OBLIGATIONS UNDER THE CLAUSES EXCEPT AS AGREED IN WRITING BY THE DATA EXPORTER, PROVIDED THAT THE DATA EXPORTER HEREBY AGREES TO THE RELEVANT DATA IMPORTER USING THE RELEVANT THIRD PARTY DATA CENTER/HOSTING INFRASTRUCTURE PROVIDER(S) AS STATED BELOW AND SUCH OTHER THIRD PARTY DATA CENTER/HOSTING INFRASTRUCTURE PROVIDER(S) AS IT MAY CHOOSE IN THE PROVISION OF THE SERVICES WHERE SUCH DATA CENTER/HOSTING INFRASTRUCTURE PROVIDER IS BASED EITHER IN THE EUROPEAN ECONOMIC AREA OR A THIRD COUNTRY ENSURING AN ADEQUATE LEVEL OF PROTECTION BY REASON OF ITS DOMESTIC LAW OR OF THE INTERNATIONAL COMMITMENTS IT HAS ENTERED INTO AS DETERMINED BY THE EUROPEAN COMMISSION. BREEZYHR CURRENTLY USES AMAZON WEB SERVICES AND/OR IPERION AND/OR CYXTERA AS ITS THIRD PARTY DATA CENTER/HOSTING INFRASTRUCTURE PROVIDER(S) IN THE PROVISION OF THE SERVICES AND IN CASE OF A CHANGE IN SUCH THIRD-PARTY DATA CENTER/HOSTING INFRASTRUCTURE PROVIDER IN THE PROVISION OF THE SERVICES, DATA IMPORTER SHALL PROVIDE DATA EXPORTER WITH REASONABLE ADVANCE WRITTEN NOTICE. DATA IMPORTER SHALL REMAIN RESPONSIBLE FOR ALL ACTS AND OMISSIONS OF THE APPLICABLE DATA CENTER/HOSTING INFRASTRUCTURE PROVIDER(S) UNDER AND SUBJECT TO THE CLAUSES.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
This Appendix forms part of the Clauses and must be completed and signed by the parties
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 (please specify briefly your activities relevant to the transfer):
as further described as page 1 of this Standard Contractual Clauses agreement
as further described as page 1 of this Standard Contractual Clauses agreement
The personal data transferred concern the following categories of data subjects (please specify):
As may be applicable to the relevant product purchased by Data Exporter:
Categories of data
The personal data transferred concern the following categories of data (please specify):
As may be applicable to the relevant product purchased by Data Exporter:
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The provision of above-mentioned services may result in processing of data subjects’ personal data in at least the following manner:
BreezyHR will only use Customer Data for the purposes of fulfilling its obligations under the relevant Order Form. BreezyHR will maintain and enforce physical and logical security procedures with respect to its access and maintenance of Customer Data contained on BreezyHR servers.
BreezyHR will use reasonable measures to secure and defend its location and equipment against “hackers” and others who may seek to modify or access the BreezyHR servers or the information found therein without authorization. BreezyHR will test its systems for potential security breaches at least annually.
BreezyHR has a written information security program (“Information Security Program”) that includes administrative, technical, and physical safeguards that protect against any reasonably anticipated threats or hazards to the confidentiality of the Customer Data, and protect against unauthorized access, use, disclosure, alteration, or destruction of the Customer Data. In particular, the BreezyHR’s Information Security Program shall include, but not be limited, to the following safeguards where appropriate or necessary to ensure the protection of Confidential Information and Personal Data:
Access Controls – policies, procedures, and physical and technical controls: (i) to limit physical access to its information systems and the facility or facilities in which they are housed to properly authorized persons and (ii) to authenticate and permit access only to authorized individuals.
Security Incident Procedures – policies and procedures to detect, respond to, and otherwise address security incidents, including procedures to monitor systems and to detect actual and attempted attacks on or intrusions into Customer Data or information systems relating thereto, and procedures to identify and respond to validated security incidents, mitigate harmful effects of security incidents, and document security incidents and their outcomes.
Contingency Planning – policies and procedures for responding to an emergency or other occurrence (for example, fire, vandalism, system failure, and natural disaster) that damages Customer Data or systems that contain Customer Data, including a data backup plan and a disaster recovery plan.
Device and Media Controls – policies and procedures that govern the receipt and removal of hardware and electronic media that contain Customer Data into and out of a BreezyHR data center, and the movement of these items within a BreezyHR data center, including policies and procedures to address the final disposition Customer Data.
Audit controls – hardware, software, and/or procedural mechanisms that record activity in information systems that contain or use Customer Data.
Data Integrity – policies and procedures to guard against the unauthorized disclosure, improper alteration, or unauthorized destruction of Customer Data.
Transmission Security – encryption of electronic information while in transit to guard against unauthorized access to Customer Data that is being transmitted over public communications network.
Secure Disposal – policies and procedures regarding the disposal of Customer Data, taking into account available technology that can be used to sanitize storage media such that stored data cannot be practicably read or reconstructed.
Testing – BreezyHR shall regularly test the key controls, systems and procedures of its Information Security Program to verify that they are properly implemented and effective in addressing the threats and risks identified. Tests will be conducted or reviewed using appropriate industry standards.
Adjust the Program – BreezyHR shall monitor, evaluate, and adjust, as it deems necessary, the Information Security Program in light of any relevant changes in technology or industry security standards, the sensitivity of Customer Data, and internal or external threats to BreezyHR or the Customer Data.
Security Training – BreezyHR shall provide periodic security awareness and data privacy training for its employees that will have access to Customer Data.
Confidentiality - BreezyHR shall require that all BreezyHR employees who are granted access to Customer Data undergo appropriate screening, where lawfully permitted, and enter into a confidentiality agreement prior to being granted such access.