Data Processing Agreement
This Data Processing Agreement, including its Annexes (“DPA”), is entered into by Merge API, Inc., a Delaware corporation having its principal place of business at 415 Mission St, Floor 37, San Francisco, CA 94105 (“Company” or “Merge”), and Counterparty (defined below).
Merge provides its proprietary, Software-as-a-Service solution for integrating HR, payroll, recruiting, and accounting platforms (“Service(s)”) to Customers and End Customer (each as defined below). The provision of the Service involves the Processing of Personal Data subject to the Data Protection Laws, and the purpose of this DPA is to set forth the terms under which Merge Processes the Personal Data.
THIS DPA APPLIES BETWEEN THE PARTIES WHERE A REPRESENTATIVE OF COUNTERPARTY CLICKS A BOX INDICATING ACCEPTANCE, TRANSFERS PERSONAL DATA TO MERGE FOR PROCESSING BY MEANS OF THE SERVICE, OR OTHERWISE AFFIRMATIVELY INDICATES ACCEPTANCE OF THIS DPA. BY DOING SO, YOU: (A) AGREE TO THIS DPA ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“COUNTERPARTY”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND COUNTERPARTY AND ITS AFFILIATES TO THIS DPA. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS DPA, YOU MAY NOT DIRECTLY OR INDIRECTLY TRANSFER PERSONAL DATA TO MERGE. MERGE RESERVES THE RIGHT TO MODIFY OR UPDATE THE TERMS OF THIS DPA IN ITS DISCRETION, THE EFFECTIVE DATE OF WHICH WILL BE THE EARLIER OF (I) 30 DAYS FROM THE DATE OF SUCH UPDATE OR MODIFICATION AND (II) COUNTERPARTY’S CONTINUED TRANSFER OF PERSONAL DATA.
If Customer and Merge have executed a written data processing agreement governing the processing of personal data by means of the Service, then the terms of such signed data processing agreement between the parties will supersede this DPA.
In the provision of services by Merge involving Counterparty, the following roles (“Roles”) apply among the parties:
All capitalized terms used in this DPA will have the meanings given to them herein, in applicable Data Protection Laws, or as set forth in the applicable Agreement between Merge and the Counterparty.
“Agreement” means the applicable terms between Merge and Counterparty regarding use of or integration with the Service.
“Controller” means the entity or Business which solely or jointly with other entities determines the purposes and means of the Processing of Personal Data, and for the purposes of this DPA is as set forth in the Roles table above.
“Data Breach” means a breach of security leading to accidental or unlawful destruction, loss, or alteration, unauthorized disclosure of, or access to, Personal Data Processed by Merge on behalf of Counterparty.
"Data Protection Laws” means all applicable data protection and privacy laws, their implementing regulations, regulatory guidance, and secondary legislation, each as updated or replaced from time to time, including, as they may apply: (i) the General Data Protection Regulation ((EU) 2016/679) (the “GDPR”) and any applicable national implementing laws; (ii) the UK General Data Protection Regulation (“UK GDPR”) and the UK Data Protection Act 2018; (iii) U.S. legislation (e.g., the California Consumer Privacy Act and the California Privacy Rights Act); and (iv) any other laws that may be applicable.
“Data Subject” means the identified or identifiable person to whom the Personal Data relates, as defined in the applicable Data Protection Laws.
“EU Standard Contractual Clauses” or “SCCs” or “Clauses” means the terms available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021D0914&from=EN and promulgated pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council 4 June.
“Personal Data” means any information relating to a Data Subject that is subject to the Data Protection Laws and that Merge Processes on behalf of Counterparty as described in Section 4 of this DPA.
“Processing” has the meaning given to it in the Data Protection Laws and “process”, “processes” and “processed” will be construed accordingly.
“Processor” means the entity or Service Provider which Processes Personal Data on behalf of the Controller, as defined in the applicable Data Protection Laws and for the purposes of this DPA is as set forth in the Roles table above.
- Compliance With Laws.
Each party will comply with the Data Protection Laws as applicable to it.
- Personal Data Obligations.
Counterparty undertakes that all instructions for the Processing of Personal Data under the Agreement or this DPA or as otherwise agreed will comply with the Data Protection Laws, and such instructions will not cause Merge to be in breach of any Data Protection Laws. Counterparty, to the extent that it provides its Personal Data to Merge, is responsible for the means by which the Personal Data was acquired.
- Data Processing.
Merge will Process the Personal Data solely for the purposes of providing the Service and in accordance with Counterparty’s instructions as outlined in the Agreement and this DPA, or as otherwise documented by Counterparty, in either event only as permitted by applicable Data Protection Laws.
Unless prohibited by applicable law, Merge will notify Counterparty if in its opinion, an instruction infringes any Data Protection Laws to which it is subject, in which case Merge will be entitled to suspend performance of such instruction without liability to Merge, until Counterparty confirms in writing that such instruction is valid under the Data Protection Laws. Any additional instructions regarding the manner in which Merge Processes the Personal Data will require prior written agreement between Merge and Counterparty.
Merge will not disclose Personal Data to any government, except as necessary to comply with applicable law or a valid and binding order of a law enforcement agency (such as a subpoena or court order). If Merge receives a binding order from a law enforcement agency for Personal Data, Merge will notify Counterparty of the request it has received so long as Merge is not legally prohibited from doing so.
Merge will ensure that individuals with access to or involved in the Processing of Personal Data are subject to appropriate confidentiality obligations and/or are bound by related obligations under Data Protection Laws or other applicable laws.
Where Merge acts as Counterparty’s Service Provider, Merge shall not: (i) sell or share Personal Data; (ii) collect, retain, use, or disclose Personal Data (a) for any purpose other than providing the Service specified in the Agreement and this Addendum or (b) outside of the direct business relationship between Merge and Counterparty; or (iii) combine this Personal Data with Personal Data that Merge obtains from other sources except as permitted by applicable Data Protection Laws. Merge certifies that it understands the prohibitions outlined in this Section and will comply with them.
The duration of the Processing, the nature and specific purposes of the Processing, the types of Personal Data Processed, and categories of Data Subjects under this Addendum are further specified in the Annexes to this Addendum and, on a more general level, in the Agreement.
- Transfers of Personal Data.
Merge shall transfer Personal Data between jurisdictions as a Data Processor in accordance with applicable Data Protection Laws.
Transfers of Personal Data Outside the EEA.
- Transfers to countries that offer adequate level of data protection. Personal Data may be transferred from EEA to other jurisdictions where such jurisdictions are deemed to provide an adequate level of data protection under applicable Data Protection Laws.
Transfers to other third countries. If the Processing of Personal Data includes transfers from EEA/EU Member States to countries outside the EEA/EU which have not been deemed adequate under applicable Data Protection Laws, the parties’ EU Standard Contractual Clauses are hereby incorporated into and form part of this Addendum. The Parties agree to include the optional Clause 7 (Docking clause) to the EU SCCs incorporated into this Addendum. With regards to clauses 8 to 18 of the EU SCCs, the different modules and options will apply as follows:
- Module Two or Three shall apply, in accordance with the Roles.
- The Option within Clause 11(a) of the EU SCCs, providing for the optional use of an independent dispute resolution body, is not selected.
- The Options and information required for Clauses 17 and 18 of the EU SCCs, covering governing law and jurisdiction, are outlined in Section 12 of this Addendum.
- Option 2 within Clause 9(a) of the EU SCCs, covering authorization for sub-processors, is selected, as discussed within Section 11 of this Addendum.
- Transfers of Personal Data Outside Switzerland. If Personal Data is transferred from Switzerland in a manner that would trigger obligations under the Federal Act on Data Protection of Switzerland (“FADP”), the EU SCCs shall apply to such transfers and shall be deemed to be modified in a manner to that incorporates relevant references and definitions that would render such EU SCCs an adequate tool for such transfers under the FADP.
- Transfers of Personal Data Outside the UK. If Personal Data is transferred in a manner that would trigger obligations under UK GDPR, the parties agree (i) that Annex IV shall apply.
- Annexes. This Addendum and its Annexes, together with the Agreement, including as relevant applicable Clauses, serve as a binding contract that sets out the subject matter, duration, nature, and purpose of the Processing, the type of Personal Data and categories of data subjects as well as the obligations and rights of the Controller. Merge may execute relevant contractual addenda, including as relevant the EU SCCs (Module 3) with any relevant Subprocessor (as hereinafter defined, including Affiliates). Unless Merge notifies Customer to the contrary, if the European Commission subsequently amends the EU SCCs at a later date, such amended terms will supersede and replace any EU SCCs executed between the parties.
- Alternative Data Export Solution. The parties agree that the data export solutions identified in this Section 5 will not apply if and to the extent that Customer adopts an alternative data export solution for the lawful transfer of Personal Data (as recognized under applicable Data Protection Laws), in which event, Customer shall reasonably cooperate with Merge to implement such solution and such alternative data export solution will apply instead (but solely to the extent such alternative data export solution extends to the territories to which Personal Data is transferred under this Addendum).
- Technical and Organizational Measures.
Merge will implement appropriate technical and organisational measures to ensure a level of security of the Personal Data appropriate to the risk, as further described in Annex II hereto. In assessing the appropriate level of security, Merge will take into account the risks that are presented by Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.
- Data Subject Rights.
Merge will assist Counterparty in responding to Data Subjects’ requests exercising their rights under the Data Protection Laws. To that effect, Merge will (a) to the extent permitted by applicable law, promptly notify Counterparty of any request received directly from Data Subjects to access, correct or delete its Personal Data without responding to that request, and (b) upon written request from Counterparty, provide Counterparty with information that Merge has available to reasonably assist Counterparty in fulfilling its obligations to respond to Data Subjects exercising their rights under the Data Protection Laws.
- Data Protection Impact Assessments.
If Counterparty is required under the Data Protection Laws to conduct a Data Protection Impact Assessment, then upon written request from Counterparty, Merge will assist where reasonably possible in the fulfilment of the Counterparty’s obligation as related to its use of the Service, to the extent Counterparty does not otherwise have access to the relevant information. If required under Data Protection Laws Merge will provide reasonable assistance to Counterparty in the cooperation or prior consultation with Data Protection Authorities in relation to any applicable Data Protection Impact Assessment.
- Audit of Technical and Organizational Measures.
Merge agrees to make available all information necessary to demonstrate its compliance with data protection policies and procedures implemented as part of the Service. To this end, upon written request (not more than once annually) Counterparty may, at its sole cost and expense, verify Merge’s compliance with its data protection obligations as specified in this DPA by: (i) submitting a security assessment questionnaire to Merge; and (ii) if Counterparty is not satisfied with Merge’s responses to the questionnaire, then Counterparty may conduct an audit in the form of meetings with Merge’s information security experts upon a mutually agreeable date. Such interviews will be conducted with a minimum of disruption to Merge’s normal business operations and subject always to Merge’s agreement on scope and timings. The Counterparty may perform the audit described above either by itself or through a mutually agreed upon third party auditor, provided that Counterparty or its authorized auditor executes a mutually agreed upon non-disclosure agreement. Counterparty will be responsible for any actions taken by its authorized auditor. All information disclosed by Merge under this Section 9 will be deemed Merge Confidential Information, and Counterparty will not disclose any audit report to any third party except as obligated by law, court order or administrative order by a government agency. Merge will remediate any mutually agreed, material deficiencies in its technical and organizational measures identified by the audit procedures described in this Section 9 within a mutually agreeable timeframe.
- Breach notification
If Merge becomes aware of a Data Breach that results in unlawful or unauthorized access to, or loss, disclosure, or alteration of the Personal Data, then Merge will notify the Counterparty without undue delay and in any event, within seventy-two hours after becoming aware of such Data Breach and will co-operate with the Counterparty and take such reasonable commercial steps as agreed with the Counterparty to assist in the investigation, mitigation and remediation of such Data Breach. Merge will provide all reasonably required support and cooperation necessary to enable Counterparty to comply with its legal obligations in case of a Data Breach pursuant to applicable Data Protection Laws.
Counterparty agrees that Merge may engage either Merge affiliated companies or third parties providers as “Subprocessors” and hereby authorizes Merge to engage such Subprocessors in the provision of the Service. Merge will restrict the Processing activities performed by Subprocessors to only what is necessary to accomplish the purposes of the Agreement and this DPA. Merge will impose appropriate contractual obligations in writing upon the Subprocessors that are no less protective than this DPA, and Merge will remain responsible for the Subprocessors’ compliance with the obligations under this DPA.
Merge maintains a list of all Subprocessors at www.merge.dev/data-subprocessors (Annex III). Merge may amend the list of Subprocessors by adding or replacing Subprocessors at any time and will use commercially reasonable efforts to provide Counterparty with fifteen (15) days’ advance notice of any updates so long as Counterparty subscribes to Merge’s notification list. Controller will be entitled to object to a new Subprocessor by notifying Merge in writing the reasons of its objection. Merge will work in good faith to address Controller’s objections. If Merge is unable or unwilling to adequately address Controller’s objections to its reasonable satisfaction, then Controller may terminate this DPA and the Agreement, as specified in the Agreement.
- Governing Law.
This Addendum shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws. For the purposes of Clauses 17 and 18 of the EU SCCs, where applicable, to the extent that the governing law and jurisdiction provisions in the Agreement do not meet the requirements of the EU SCCs, the parties select Option 2 of Clause 17, and agree that the EU SCCs shall be governed by the law of the EU Member State in which the data exporter is established; where such law does not allow for third-party beneficiary rights, the EU SCCs shall be governed by the laws of the country of Ireland. Pursuant to Clause 18, any dispute between the Parties arising from the EU SCCs shall be resolved by the courts of Ireland, and the Parties submit themselves to such jurisdiction. For the purposes of Clause 13 of the EU SCCs, the Supervisory Authority shall be the data exporter’s applicable Supervisory Authority. Data exporter shall notify data importer of the applicable Supervisory Authority by email at firstname.lastname@example.org and shall provide any necessary updates without undue delay.
- Return or Deletion of Personal Data.
Unless otherwise required by applicable Data Protection Laws, Merge will delete or return, in Counterparty’s discretion and upon Counterparty’s written request, Personal Data within a reasonable period of time following the termination or expiration of the Agreement.
This Addendum shall automatically terminate upon the termination or expiration of the Agreement. This Addendum cannot, in principle, be terminated separately to the Agreement, except where the Processing ends before the termination of the Agreement, in which case, this Addendum shall automatically terminate.
- Entire Agreement; Conflict.
Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between the Agreement and this DPA, the terms of this DPA will control.
A. LIST OF PARTIES
the Customer as defined above
Role (controller/processor): Controller and/or Processor as specified in the DPA
Name: Merge API Inc.
Address: 415 Mission Street, WeWork, Floor 37, San Francisco, CA 94105
Contact person’s name, position and contact details: email@example.com
Name: Shensi Ding
Position: Chief Executive Officer
Address: 415 Mission Street, WeWork, Floor 37, San Francisco, CA 94105
Role: Processor (or Subprocessor as the case may be)
Activities relevant to the data transferred under these Clauses: Processing of personal data for the Services pursuant to the Agreement.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
- Customer and its end users (e.g., account holders, job applicants, end-customers, prospective customers, employees, contractors, suppliers and end-users of the data exporter and the data exporter’s customers, vendors and partners).
Categories of personal data transferred
- Categories of personal data chosen by a controller and issued to processor or subprocessor as the case may be, via the Service (e.g., ATS, HRIS and Accounting related personal data): such as name, address, email, phone number, authentication information, work history, transactional and account information, pay rate and tax information, health plan information, gender, marital status, veteran status.
Note: Data Importer does not process sensitive data except to the extent transferred via the Service by Data Exporter’s end users.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
- On a continuous basis as determined by a controller or on its behalf as permitted under the Agreement
Nature of the processing
- Integration services between joint systems that a controller chooses and made available by processor or subprocessor as the case may be
Purpose(s) of the data transfer and further processing
- For processor/subprocessor to provide the specific Services to a controller (or on their behalf) as required under the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
- For the term of the Agreement and until notified by a controller, or controller deletion (via Service API)
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
For the term of the Agreement.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
- The competent supervisory authority/ies applicable to Data Exporter as notified to Data Importer in accordance with Section 12 of the Addendum.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Merge processes all personal data received from Controller, or on its behalf under this DPA in conformity with the following technical and organizational measures:
Information Security Organization
- Merge’s Information Security Policy outlines roles and responsibilities for personnel with responsibility for the security, availability, and confidentiality of the Product and Service.
- The Chief Technology Officer is responsible for the design, implementation, and management of the organization’s security policies, which are reviewed at least annually. Annual review includes assessment of internal controls used in the achievement of Merge’s Service commitments and system requirements. Following review, any deficiencies are resolved in accordance with the Risk Assessment and Management Program.
- The Chief Technology Officer also performs an annual formal risk assessment, which includes the identification of relevant internal and external threats related to security, availability, confidentiality, and fraud, and an analysis of risks associated with those threats. The CTO maintains a risk register, which records the risk mitigation strategies for identified risks, and the development or modification of controls consistent with the risk mitigation strategy.
- The Security team is responsible for identifying and tracking incidents and creating a ‘lessons learned’ document and sharing it with the engineering team. The Engineering team is responsible for Software development and deployment.
Access Controls and Asset Management
Incident Management and Business Continuity
Data and Availability Controls
Vendor and Vulnerability Management
LIST OF SUB-PROCESSORS
The controller has authorised the use of the Subprocessors listed at the following website:
UK ADDENDUM TO EU STANDARD CONTRACTUAL CLAUSES
PART 1: TABLES
Table 1: Parties
Table 2: Selected SCCs, Modules and Selected Clauses
Table 3: Appendix Information
"Appendix Information" means the information which must be provided for the selected modules as set out in the Appendix of the Approved SCCs (other than the Parties), and which for this UK Addendum is set out in:
Table 4: Ending this Addendum when the Approved Addendum Changes
PART 2: MANDATORY CLAUSES
Last Updated: March 29, 2023