GDPR Data Processing Addendum

1. DEFINITIONS. Unless otherwise defined in the Agreement, all capitalized terms used in this DPA will have the meanings given to them below.

1.1 “Agreement” means any agreement between Lever and a specific customer under which Services are provided by Lever to that customer. Such an agreement may have various titles, including but not limited to “Order Form,” “Sales Order,” or “Terms of Service.”

1.2 “Customer” means the entity which determines the purposes and means of Processing of Customer Data. 
“Customer Data” means any “personal data” (as defined in GDPR) that is provided by or on behalf of Customer and Processed by Lever pursuant to the Agreement.

1.3 “Data Protection Laws” means all laws and regulations, including laws and binding regulations of the European Union, the European Economic Area (“EEA”) and their member states, Switzerland and the United Kingdom, and any amending or replacement legislation from time to time, applicable to the Processing of Customer Data under the Agreement.

1.4 “GDPR” means the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons regarding the Processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC.

1.5 “Permitted Purpose” means the use of the Customer Data to the extent necessary for provision of the Services by Lever to the Customer.

1.6 “Security Incident” means any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of Customer Data.

1.7 “Services” means the Lever services, including the services branded as Lever Hire Enterprise, Lever Hire Starter, Lever Hire Professional, Lever Nurture, Lever Talent Intelligence, and any other related services that are ordered by the Customer from Lever.

1.8 “Standard Contractual Clauses” means the agreement pursuant to the European Commission decision (C(2010)593) of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.

1.10 “Sub-processor” means any entity engaged by Lever to Process Customer Data in connection with the Services.

1.11 “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.

1.12 Terms such as “Data Subject,” “Processing,” “Controller,” and “Processor” shall have the meaning ascribed to them in the GDPR.

1.13 “Third-Party Services” means connections and/or links to third party websites and/or services not included in the core Services offerings identified in the Agreement, including, without limitation, via application programming interfaces.

CUSTOMER’S OBLIGATIONS

3.1 Instructions. Customer shall warrant that the instructions it provides to Lever pursuant to this DPA comply with the Data Protection Laws.  

3.2 Data Subject and Supervisory Authority Requests. The Customer shall be responsible for communications and leading any efforts to comply with all requests made by Data Subjects under the Data Protection Laws, and all communications from Supervisory Authorities that relate to Customer Data, in accordance with Data Protection Laws. To the extent such requests or communications require Lever’s assistance, the Customer shall notify Lever of the Data Subject or Supervisory Authority request.

3.3 Notice, Consent and Other Authorizations. Customer is responsible for providing the necessary notice to the Data Subjects under the Data Protection Laws.  Customer is responsible for obtaining, and demonstrating evidence that it has obtained, all necessary consents, authorizations and required permissions under the Data Protection Laws in a valid manner for Lever to perform the Services.

4. LEVER’S OBLIGATIONS

4.1 Scope of Processing.  Lever will Process Customer Data on documented instructions from the Customer, and in such manner as is necessary for the provision of Services except as required to comply with a legal obligation to which Lever is subject. If Lever believes any documented instruction or additional processing instruction from Customer violates the GDPR or other Data Protection Laws, Lever will inform Customer without undue delay and may suspend the performance of the Services until Customer has modified or confirmed the lawfulness of the additional processing instruction in writing. Customer acknowledges and agrees that Lever is not responsible for performing legal research or for providing legal advice to Customer.

4.2 Data Subject Requests.  If Lever receives a request from any Data Subject made under Data Protection relating to Customer Data, Lever will provide a copy of that request to the Customer within two (2) business days of receipt. Lever provides Customer with tools to enable Customer to respond to a Data Subjects’ requests to exercise their rights under the Data Protection Laws. See help.lever.co/hc/en-us/articles/360003802252-How-can-I-collect-respond-to-data-requests-in-Lever-. To the extent Customer is unable to respond to Data Subject’s request using these tools, Lever will provide reasonable assistance to the Customer in responding to the request.

4.3 Supervisory Authority Requests. Lever will assist Customer in addressing any communications and abiding by any advice or orders from the Supervisory Authority relating to the Customer Data.  

4.4 Retention. Lever will retain Customer Data only for as long as the Customer deems it necessary for the Permitted Purpose, or as required by applicable laws. At the termination of this DPA, or upon Customer’s written request, Lever will either destroy or return the Customer Data to the Customer, unless legal obligations require storage of the Customer Data.  

4.5 Disclosure to Third Parties and Confidentiality.  

3.5.1 Lever will not disclose the Customer Data to third parties except as permitted by this DPA or the Agreement, unless Lever is required to disclose the Customer Data by applicable laws, in which case Lever shall (to the extent permitted by law) notify the Customer in writing and liaise with the Customer before complying with such disclosure request.

3.5.2 Lever treats all Customer Data as strictly confidential and requires all employees, agents, and Sub-processors engaged in Processing the Customer Data to commit themselves to confidentiality, and not Process the Customer Data for any other purposes, except on instructions from Customer.  

4.6 Assistance. Taking into account the nature of the Processing and the information available, Lever will provide assistance to Customer in complying with its obligations under GDPR Articles 32-36 (inclusive) (which address obligations with regard to security, breach notifications, data protection impact assessments, and prior consultation). Upon request, Lever will provide Customer a list of processing operations.

4.7 Security. Lever will keep Customer Data confidential and implement and maintain administrative, physical, technical and organizational safeguards for the security (including protection against accidental or unlawful loss, destruction, alteration, damage, unauthorized disclosure of, or access to, Customer Data transmitted, stored or otherwise Processed), confidentiality and integrity of Customer Data as detailed in Annex 1.  

5. CONTRACTING WITH SUB-PROCESSORS

5.1 General Consent. Customer agrees that Lever may engage third-party Sub-processors in connection with the provision of Services, subject to compliance with the requirements below. As a condition to permitting a Sub-processor to Process Customer Data, Lever will enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Customer Data as those in this DPA, to the extent applicable to the nature of the Services provided by such Sub-processor. Lever will provide copies of any Sub-processor agreements to Customer pursuant only upon reasonable request by Customer.

5.2 Current Sub-processor List. Customer acknowledges and agrees that Lever may engage its current Sub-processors listed here.

5.3 Written Notice Via Mailing List. Lever will provide Customer with notice (“New Sub-processor Notice”) of the addition of any new Sub-processor to the Sub- processor List at any time during the term of the Agreement. Lever will provide Customer with additional information about any Sub-processor on the Sub-processor List that Customer may reasonably request upon receipt of a New Sub-processor Notice

5.4 Customer Objection. If Customer has a reasonable basis to object to Lever’s use of a new Sub-processor, Customer will notify Lever promptly in writing within 15 days after receipt of a New Sub-processor Notice. Lever will use reasonable efforts to make available to Customer a change in the affected Services or recommend a commercially reasonable change to Customer’s configuration or use of the affected Services to avoid processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening Customer. If Lever is unable to make available such change within a reasonable period of time, which will not exceed 30 days, Customer may terminate the portion of any Agreement relating to the Services that cannot be reasonably provided without the objected-to new Sub-processor by providing written notice to Lever.

5.5 Responsibility. Lever will remain responsible for its compliance with the obligations of this DPA and for any acts and omissions of its Sub-processors that cause Lever to breach any of Lever’s obligations under this DPA.

6. SECURITY INCIDENT MANAGEMENT

6.1 Notification. Lever shall, to the extent permitted by law, notify Customer without undue delay, but no later than 48 hours after becoming aware of any Security Incident.

6.2 Security Incident. Lever’s notification of a Security Incident to the Customer to the extent known should include: (a) the nature of the incident; (b) the date and time upon which the incident took place and was discovered; (c) the number of data subjects affected by the incident; (d) the categories of Customer Data involved; (e) the measures – such as encryption, or other technical or organizational measures – that were taken to address the incident, including measures to mitigate the possible adverse effects; (f) whether such proposed measures would result in a disproportionate effort given the nature of the incident; (g) the name and contact details of the data protection officer or other contact; and (h) a description of the likely consequences of the incident.  The Customer alone may notify any public authority.

7. TRANSFERS OUTSIDE THE EUROPEAN ECONOMIC AREA

7.1 Privacy Shield. Lever complies with the terms of the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks, and is Privacy Shield certified. That certification will serve as the transfer mechanisms for any Customer transfers of Customer Data under this DPA to Lever from the EEA, Switzerland or the United Kingdom to the United States. The Parties acknowledge and agree that on the request of the United States Department of Commerce (or any successor body) or a competent supervisory authority, enforcement or other public or regulatory authority, court or tribunal, Lever may make available to them a summary or representative copy of this DPA or any relevant provisions in the Agreement.

7.2 Standard Contractual Clauses. To the extent Privacy Shield is nullified or no longer is recognized by the European Commission as a valid transfer mechanism, the Parties agree the Standard Contractual Clauses (as evidence by each party’s authorized signature on the Agreement), will apply to Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing as adequate level of protection for personal data (as described by the GDPR.

7.2.1 Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees Lever may engage new Sub-processors as described in Section 5 of this DPA.

7.2.2 The Parties agree the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out as described in Section 8 of this DPA.

7.2.3 The Parties agree that the certification of deletion of Customer Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Lever to Customer only upon Customer’s request.

8. THIRD PARTY CERTIFICATIONS AND AUDITS

8.1 Certification/SOC Report. In addition to the information contained in this DPA, upon Customer’s request, and subject to the confidentiality obligations set forth in the Agreement place, Lever will make available the following documents and information regarding the System and Organization Controls (SOC) 2 Report (or the reports or other documentation describing the controls implemented by Lever that replace or are substantially equivalent to the SOC 2), so that Customer can reasonably verify Lever’s compliance with its obligations under this DPA.

8.2 Audits. To the extent the reports provided in Section 8.1 do not verify Lever’s compliance with its obligations under this DPA, Customer may audit Lever’s compliance with this DPA up to once per year, unless requested by a Supervisory Authority or in the event of a Security Incident. Such audit will be conducted by an independent third party (“Auditor”) reasonably acceptable to Lever. Before the commencement of any such on-site audit, Customer must submit a detailed proposed audit plan to Lever at least two weeks in advance of the proposed audit date.  The proposed audit plan must describe the proposed scope, duration and state date of the audit. Lever will review the proposed audit plan and provide Customer with any concerns or questions. Lever will work cooperatively with Customer to agree on a final audit plan. The results of the inspection and all information reviewed during such inspection will be deemed Lever’s confidential information and shall be protected by Auditor in accordance with the confidentiality provisions noted above. Notwithstanding any other terms, the Auditor may only disclose to the Customer specific violations of the DPA, if any, and the basis for such findings, and shall not disclose to Customer any of the records or information reviewed during the inspection.

9. MISCELLANEOUS

9.1 Obligations Post-termination. Termination or expiration of this DPA shall not discharge the Parties from their obligations meant to survive the termination or expiration of this DPA.

9.2 Severability. Any provision of this DPA that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute and shall incorporate such substitute provision into this DPA.