Bullhorn, Inc. and its Group Companies

Standard Contractual Clauses (Controller to Processor) [Module 2]
(“2021 Standard Contractual Clauses”)

For Master Subscription Agreements and Data Processing Addendums with Customers located in the EEA.

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: the entity identified as “Customer” or “Licensee” in the Master Subscription Agreement.

(the data exporter)

And

Name of the data importing organisation: Bullhorn, Inc. or its Group Companies identified as Licensor in the Master Subscription Agreement.

Address: c/o Bullhorn, Inc., 100 Summer Street, 17th Floor, Boston, Massachusetts, United States 02110

Tel. 617-478-9100; e-mail: legal@bullhorn.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.

The Clauses are effective from the date they are incorporated into Licensor’s Master Subscription Agreement, including the Data Processing Addendum (“MSA”) that reference the Clauses.  Entry into the MSA shall constitute execution of the Clauses (including Appendices 1-3) by the parties.  The Clauses shall be subject to the terms and conditions of the MSA and shall expire on the termination or expiry of the MSA.

I. Additional Terms

The Parties agree that the following terms shall apply to the Standard Contractual Clauses (Controller to Processor) [Module 2] set forth below.

1. Instructions. Any additional instructions by data importer must be consistent with the terms of the MSA and agreed-to in writing by the parties. For the purposes of clause 8.1(a), the instructions by Customer to Process Personal Data include onward transfers to a third party located outside EEA.

2. Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in clause 8.5 and 16(d) of the Clauses shall be provided by Bullhorn to Customer upon Customer’s written request only and as further set forth in the MSA.

3. Security of Processing. For the purposes of clause 8.6(a), Customer is solely responsible for making an independent determination as to whether the documented technical and organisational measures of Bullhorn meet Customer’s requirements and agrees that, taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the Processing of its Personal Data as well as the risks to individuals, the security measures and policies implemented and maintained by Bullhorn provide a level of security appropriate to the risk with respect to its Personal Data. For the purposes of clause 8.6(c), personal data breaches will be handled in accordance with the MSA.

4. Audits of the SCCs. The parties agree that the audits described in clause 8.9 of the Clauses shall be carried out in accordance with the audit provisions as agreed in the MSA.

5. General Written Authorisation. Option 2 under clause 9 shall apply. For the purposes of clause 9(a), Customer grants its general authorisation to Bullhorn to engage sub-processors in accordance with the MSA. Customer hereby acknowledges and explicitly approves that the current list of sub-processors is set forth at https://www.bullhorn.com/legal/sub-processors/. Where Bullhorn enters into Standard Contractual Clauses (Processor to Processor) [Module 3] with a sub-processor in connection with the provision of the Services, Customer hereby grants Bullhorn authority to provide a general authorisation on Customer’s behalf for the engagement of sub-processors by Bullhorn’s sub-processors engaged in the provision of the Services, as well as decision making and approval authority for the addition or replacement of any such sub-processors of Bullhorn’s sub-processors. In addition, in accordance with clause 9(a), Customer acknowledges and agrees that Bullhorn may engage new sub-processors as set forth in the MSA. Bullhorn shall inform Customer of any changes to sub-processors and Customer may object to any such changes as set forth in the MSA.

6. Complaints – Redress. For the purposes of clause 11, Bullhorn shall inform data subjects on its website of a contact point authorised to handle complaints. See www.bullhorn.com/privacy. Bullhorn shall inform Customer if it receives a complaint by, or a dispute from, a Data Subject with respect to Personal Data and shall without undue delay communicate in writing the complaint or dispute to Customer. Bullhorn shall not otherwise have any obligation to handle the request (unless otherwise agreed with Customer).

7. Liability. Bullhorn’s liability under clause 12(b) shall be limited to any damage caused by its Processing where Bullhorn has not complied with its Data Processing obligations under GDPR, or where it has acted outside of or contrary to lawful instructions of Customer, as specified in Article 82 GDPR. Liability under clauses 12 shall be subject to the limits set forth in the MSA.

8. Notification of Government Access Requests. For the purposes of clause 15(1)(a), Bullhorn shall notify Customer (only) and not the Data Subject(s) in case of government access requests. Customer shall be solely responsible for promptly notifying the Data Subject as necessary.

9. Governing Law. The governing law for the Clauses and for the purposes of clause 17 shall be the law that is designated in the Governing Law section of the MSA. If the MSA is not governed by an EU Member State law, the Clauses will be governed by the laws of the Netherlands.

10. Choice of forum and jurisdiction. The courts as the venue under the Clauses and under clause 18 shall be those designated in the Venue section of the MSA. If the MSA does not designate an EU Member State court as having exclusive jurisdiction to resolve any dispute or lawsuit arising out of or in connection with this Agreement, the parties agree to the jurisdiction of the courts of Amsterdam District Court following proceedings in English under the Chamber for International Commercial Matters. (“Netherlands Commercial Court” or “NCC”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (“CSP”) (voorzieningenrechter) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (Netherlands Commercial Court of Appeal or NCCA). Each Party agrees that the Netherlands Commercial Court is the most appropriate and convenient court to settle disputes and accordingly no Party will argue to the contrary.

11. Data Exports from Switzerland. In case of any transfers of Personal Data from Switzerland subject exclusively to the Data Protection Laws and Regulations of Switzerland (“Swiss Data Protection Laws”), see Annex 4.

12. Data Exports from the United Kingdom. In case of any transfers of Personal Data from the United Kingdom subject exclusively to the Data Protection Laws and Regulations of the United Kingdom (“UK Data Protection Laws”) shall be subject to the UK Addendum to the Standard Contractual Clauses, posted at https://www.bullhorn.com/legal/model-clauses/.

13. Conflict. The Clauses are subject to the MSA and the rights and obligations provided by the Clauses will be exercised in accordance with the MSA, unless stated otherwise. In the event of any conflict or inconsistency between the MSA and the Clauses, the Clauses shall prevail.

STANDARD CONTRACTUAL CLAUSES
MODULE TWO: TRANSFER CONTROLLER TO PROCESSOR

SECTION I

1. Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex 1.A. (hereinafter each “data exporter”), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex 1.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex 1.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

2. Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

3. Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8 – Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e);

(iv) Clause 12 – Module Two: Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18 – Module Two: Clause 18(a) and (b);

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

4. Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

5. Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

6. Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex 1.B.

7. Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex 1.A.

(b) Once it has completed the Appendix and signed Annex 1.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex 1.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

8. Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1. Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2. Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex 1.B, unless on further instructions from the data exporter.

8.3. Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex 2 and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4. Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5. Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex 1.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6. Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex 2. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7. Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex 1.B.

8.8. Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9. Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of noncompliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

9. Use of sub-processors

(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least ten (10) business days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

10. Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex 2 the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

11. Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

12. Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

13. Supervision

(a) The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY
PUBLIC AUTHORITIES

14. Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ;

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

15. Obligations of the data importer in case of access by public authorities

15.1. Notification

(a) The data importer agrees to notify the data exporter in accordance with the notice clause set forth in the MSA, as well as legal@bullhorn.com and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2. Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

16. Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

17. Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that the governing law shall be the law that is designated in the Governing Law section of the MSA. If the MSA is not governed by an EU Member State law, the Standard Contractual Clauses will be governed by the laws of the Netherlands.

18. Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts designated in the Venue section of the MSA. If the MSA does not designate an EU Member State court as having exclusive jurisdiction to resolve any dispute or lawsuit arising out of or in connection with this Agreement, the parties agree to the jurisdiction of the courts of Amsterdam District Court following proceedings in English under the Chamber for International Commercial Matters. (“Netherlands Commercial Court” or “NCC”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (“CSP”) (voorzieningenrechter) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (Netherlands Commercial Court of Appeal or NCCA).

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

ANNEX 1

A. LIST OF PARTIES

Data exporter(s):

1. Name: The entity identified as “Customer” or “Licensee” in the MSA.

Address: Address set forth in the MSA.

Contact person’s name, position and contact details: Contact information set forth in the MSA.

Activities relevant to the data transferred under these Clauses: See Annex 1.B

Role (controller/processor): Controller

Data importer(s):

1. Name: Bullhorn, Inc. or its Group Companies identified as Licensor in the Master Subscription Agreement.

Address: c/o Bullhorn, Inc., 100 Summer Street, 17th Floor, Boston, Massachusetts, United States 02110

Contact person’s name, position and contact details: Data Protection Officer, dpo@bullhorn.com

Activities relevant to the data transferred under these Clauses: See Annex 1.B
Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Data Exporter’s customers, prospective customers, business partners, vendors, candidates or prospective candidates (who are natural persons); employees, representatives, consultants, contractors or agents of Data Exporter (who are natural persons); employees, representatives, consultants, contractors or agents of Data Exporter’s customers, prospective customers, business partners and vendors (who are natural persons); and Data Exporter’s users authorized by Data Exporter to use the Service (who are natural persons). The Data Subjects may include current, past or prospective Data Subjects identified herein.

Categories of personal data transferred

Data Exporter may submit Personal Data, 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 data:

Personal information – Included in this category are classes of data which identify the Data Subject and their personal characteristics. Examples are names, addresses, job title, employer, contact details, age, sex, date of birth, physical descriptions, identifiers issued by public bodies, e.g. SSN and NI numbers.

Education and professional training information – Included in this category are matters which relate to the education and professional training of the Data Subject. Examples are academic records, qualifications, skills, training records, and professional expertise.
Employment information – Included in this category are matters relating to the employment of the Data Subject. Examples are business role, line manager, employment and career history, recruitment and termination details, attendance record, health and safety records, performance appraisals, training records, agency employer, security records or other information necessary to determine a Data Subject’s fitness for employment.

Financial details – Included in this category are matters relating to the financial affairs of the Data Subject. Examples are income, salary, billing rate, payments, benefits, or other information necessary to process payroll for a Data Subject.

Goods or services provided – Included in this category are classes of data relating to goods and services which have been provided. Examples are details of the goods or services supplied, licenses issued, agreements and contracts.

IT information – Included in this category is any information relating to a Data Subject’s use of technology or software including IP addresses, any information about the computing or mobile device a Data Subject is using, location data gathered from such devices, connection data, usernames and passwords, and social media handles.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

Data Exporter may submit special categories of Personal Data, 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 data:

Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, criminal records and background checks.

Data Exporter may submit such special categories of Personal Data provided it is entered into the specific encrypted and/or confidential data fields and file storage locations that are available and designated in the Service for the inclusion of such Sensitive Data. Data Exporter must transmit or transfer to Data Importer such Sensitive Data only through secure transmission methods, for example through an encrypted FTP transfer, encrypted hard drive or other encrypted transmission method agreed to or made available by Data Importer for such purposes.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

Continuous basis subject to Data Exporter’s use of the Service.

Nature of the processing

The nature of processing of Personal Data by Data Importer is the performance of the Services pursuant to the MSA or in accordance with Data Exporter’s instructions.

Purpose(s) of the data transfer and further processing

The purpose of processing of Personal Data by Data Importer is the performance of the Services pursuant to the Agreement or in accordance with Data Exporter’s instructions.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

Subject to the terms of the MSA, Personal Data will be processed and retained by Data Importer for the duration of the MSA.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

Subject to the terms of the MSA, Personal Data will be transferred to sub-processors for the duration of the MSA. Subject matter and nature of the processing as set forth above and as set forth at https://www.bullhorn.com/legal/sub-processors/.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

Where Customer is established in an EU Member State or falls within the territorial scope of the application of Regulation (EU) 2016/679, the Dutch Data Protection Authority, Autoriteit Persoonsgegevens, Bezuidenhoutseweg 30, 2594 AV DEN HAAG. Netherlands shall act as competent supervisory authority.

ANNEX 2

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Data Importer’s internal security measures are based on administrative, technical, and physical controls set forth in Data Importer’s security and privacy documentation, as updated from time to time. Dedicated personnel are designated to manage security and compliance within the Data Importer’s organization and work closely with functional areas to provide that reasonable security measures are followed and enforced.

Data Importer employs specific data handling procedures for Personal Data. Personal Data and Sensitive Personal Data is protected within the production environments by multiple levels of security including access control measures, firewalls, and application & database security. In addition, Personal Data and Sensitive Personal Data is encrypted during transmission.

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

• Measures of pseudonymisation and encryption of personal data

• Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services

• Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident

• Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing

• Measures for user identification and authorisation

• Measures for the protection of data during transmission

• Measures for the protection of data during storage

• Measures for ensuring physical security of locations at which personal data are processed

• Measures for ensuring events logging

• Measures for ensuring system configuration, including default configuration

• Measures for internal IT and IT security governance and management, including establish and maintain network and internet security procedures, protocols, security gateways, and firewalls with respect to the Personal Data as may be appropriate

• Measures for certification/assurance of processes and products

• Measures for ensuring data minimisation

• Measures for ensuring data quality

• Measures for ensuring limited data retention

• Measures for ensuring accountability

• Measures for allowing data portability and ensuring erasure

• Measures for establishing and maintaining safeguards to permit access to the personal data only to those of its employees and representatives who (i) have a need to access the personal data for the purposes of providing services, and (ii) have agreed to maintain the personal data in confidence and only to use it for the purpose of providing the services;

• Measures to ensure that appropriate technical and organization measures are in place to prevent unauthorized, unlawful, or accidental access to the Personal Data as may be appropriate.

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter.

Data Importer will enter into a written agreement with each sub-processor containing technical and organisational measures that provide at least the same level of protection for Customer Data as those in in the MSA, to the extent applicable to the nature of the services provided by such sub-processor.

ANNEX 3

LIST OF SUB-PROCESSORS

The Data Exporter has authorized the use of the sub-processors identified at
https://www.bullhorn.com/legal/sub-processors/, as updated from time to time.

ANNEX 4

THIRD-COUNTRY ADDENDUM TO THE 2021 STANDARD CONTRACTUAL CLAUSES: SWITZERLAND

1. For the purposes of these Clauses, the term ’member state’ shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c).

2. Until December 31, 2022, these Clauses shall also protect the data of legal entities in the scope of the Swiss Federal Act on Data Protection of 19 June 1992 (SR 235.1; “FADP”).

3. In accordance with Clause 13, for data transfers from Switzerland, the Swiss Data Protection Authority (Eidgenössischer Datenschutz- und Öffentlichkeitsbeauftragter – EDÖB) shall be the supervisory authority and Swiss law shall apply.

4. All references to the GDPR are to be understood as references to the FADP, insofar as the data transfers are subject to the FADP.