Data Processing Agreement
This Data Processing Agreement (“DPA”) is entered into as of the last date executed below by and between 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 COUNTERPARTY CLICKS A BOX INDICATING ACCEPTANCE, TRANSFERS PERSONAL DATA TO MERGE FOR PROCESSING BY MEANS OF 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 (including Customer Data and/or End Customer Data as applicable) by means of the Service, then the terms of such signed data processing agreement between the parties will govern and 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 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” has the meaning given to it in the Data Protection Laws and for the purposes of this DPA is as set forth in the Roles table above.
“CCPA Personal Information” means “personal information” (as defined in the CCPA) that Merge Processes on behalf of Counterparty in connection with Merge’s provision of the Service.
"Data Protection Laws” means the following laws to the extent applicable, including any amendments to such laws: (i) the 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 (“Privacy Directive”) and the General Data Protection 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, and repealing Directive 95/46/EC (“GDPR”); (ii) the UK Data Protection Act 2018 as supplemented by Schedule 21, the Keeling Schedule (“UK GDPR”); (iii) to the extent applicable to the Service and/or Support, any other EU or EU Member State data protection laws with respect to the processing of Personal Data under the Agreement; (iv) the following laws applicable to processing of personal information of citizens of Australia and New Zealand respectively, the Privacy Act 1988 (Cth) and the Privacy Act 1993 (NZ) (together, “ANZ Privacy Law”), and (v) any United States laws or regulations protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of Personal Data, including the California Consumer Privacy Act of 2018 and any binding regulations promulgated thereunder (“CCPA”).
“Data Subject” means a “consumer” (as defined in the CCPA), a “data subject” as defined in the GDPR and in the UK GDPR), or an “individual” as defined in ANZ Privacy Law, as applicable.
“GDPR Personal Data” means the “personal data” (as defined in the GDPR and the UK GDPR) that Merge Processes on behalf of Counterparty in connection with Merge’s provision of the Service.
“Personal Data” means any information relating to a Data Subject which is subject to the Data Protection Laws and which Merge Processes on behalf of Counterparty as described in Section 4 of this DPA, including CCPA Personal Information, GDPR Personal Data, and UK GDPR Personal Data.
“Personal 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.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
“Processor” has the meaning given to it in the Data Protection Laws and for the purposes of this DPA is as set forth in the Roles table above.
“Standard Contractual Clauses” or “SCCs” or “Clauses” means (i) where the GDPR applies, 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 including Modules 2 and 3, as applicable in accordance with the Roles; and (ii) where the UK GDPR applies, the terms available at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-data-transfer-agreement-and-guidance/ and issued pursuant to Section 119A of the Data Protection Act 2018.
- Compliance With Laws
Each party will comply with the Data Protection Laws as applicable to it, including with respect to the Processing of Personal Data.
- 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 solely responsible for ensuring the accuracy, quality, and legality of Personal Data Processed by Merge including the means by which the Personal Data was acquired.
- Data Obligations
Merge will Process the Personal Data for the purposes set forth in the Agreement. Merge will Process the Personal Data in accordance with Counterparty’s instructions as documented in the Agreement and this DPA for the term of the Agreement. Merge will not access, use or otherwise Process such Personal Data, except as specified in the Agreement, including to provide and/or make available the Service.
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, 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.
- GDPR, UK GDPR and Third Countries; SCCs
This Section 5 applies to Merge’s Processing of GDPR Personal Data, or UK GDPR Personal Data, as the case may be, but solely as permitted by this DPA and the Agreement. This DPA, together with the Agreement, including the applicable SCCs, serve as the binding contract referred to in Article 28(3) of the GDPR and Section 59 of the UK GDPR 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 process Personal Data in connection with its provision of the Service in countries that have different data protection regulations than the GDPR and the UK GDPR (“Third Countries”). In such event, subject to the terms of this DPA, the GDPR Standard Contractual Clauses will govern the transfer of Personal Data to such Third Countries, including to Subprocessors in such Third Countries, unless the transfer of Personal Data occurs via an alternative means permitted by relevant Data Protection Laws.
- Requirements for CCPA Personal Information.
This Section 6 shall only apply to Merge’s Processing of CCPA Personal Information as permitted by the Agreement. For the purposes of the CCPA, Merge and Counterparty acknowledge and agree that Merge will act as a “service provider” (as defined in the CCPA) in its provision of the Service. Merge shall not retain, use or disclose CCPA Personal Information for any purpose other than for the specific purposes of providing the Service, or as otherwise permitted by the CCPA. Merge acknowledges and agrees that it shall not retain, use or disclose CCPA Personal Information for a commercial purpose other than providing the Service. Merge will not “sell” (as defined in the CCPA) any CCPA Personal Information.
- Technical and organizational measures
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Merge will in relation to the Personal Data 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 in particular 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 Subjects 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 the 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 verification described above either itself or by 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 10 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 10 within a mutually agreeable timeframe.
- Breach notification.
If Merge becomes aware of a Personal Data Breach that results in unlawful or unauthorized access to, or loss, disclosure, or alteration of the Personal Data, which is likely to cause a risk to the fundamental rights and freedoms of the Data Subjects, then Merge will notify the Counterparty without undue delay after becoming aware of such Personal 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 Personal 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 Personal Data Breach pursuant to Articles 33 and 34 of the GDPR and Sections 67 and 68 of the UK GDPR.
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 strictly 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 merge.dev/data-subprocessors. Merge may amend the list of Subprocessors by adding or replacing Subprocessors at any time. 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.
- Return or Deletion of Personal Data.
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.
- 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.
- Appendix & Annexes.
The Appendix and Annexes to the SCCs, attached to this DPA hereafter, are incorporated into, and apply to, the DPA.
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: firstname.lastname@example.org
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.
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.
Sensitive data transferred to processor by a controller, or on its behalf as permitted under the DPA, via the Services (e.g., racial or ethnic origin, social security number, religion, etc.)
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 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
The competent supervisory authority/ies under the DPA are as follows: (a) for the EEA and GDPR, any applicable Member State; and (b) for the UK GDPR, the UK.
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:
Last Updated: March 18, 2022