Data Processing Agreement
(A) Your company acts as a Data Controller (the “Controller”).
(B) Your company wishes to subcontract certain Services (as defined below), which imply the processing of personal data, to Health Science X Technologies, acting as a Data Processor (the “Processor”).
(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the 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 (General Data Protection Regulation).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
- Definitions and Interpretation
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
1.1.3 “Contracted Processor” means a Subprocessor;
1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.5 “EEA” means the European Economic Area;
1.1.6 EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.8 “Data Transfer” means:
188.8.131.52 a transfer of Company Personal Data from Controller to a Contracted Processor; or
184.108.40.206 an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
1.1.9 “Services” means interactive digital experiences. The Service is described more in detail in Schedule 1.
1.1.10 “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of Controller in connection with the Agreement.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
- Processing of Company Personal Data
2.1 Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
2.1.2 not process Company Personal Data other than on Controller’s documented instructions.
2.2 Controller instructs Processor to process Company Personal Data to provide the Services and related technical support.
- Processor Personnel
4.1 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, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5.1 Processor shall not appoint (or disclose any Company Personal Data to) any Subprocessor unless required or authorized by Controller.
- Data Subject Rights
6.1 Taking into account the nature of the Processing, Processor shall assist Controller by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Controller obligations, as reasonably understood by Controller, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Processor shall:
6.2.1 promptly notify Controller if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
6.2.2 ensure that it does not respond to that request except on the documented instructions of Controller or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Controller of that legal requirement before the Contracted Processor responds to the request.
- Personal Data Breach
7.1 Processor shall notify Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Controller with sufficient information to allow Controller to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Processor shall co-operate with Controller and take reasonable commercial steps as are directed by Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
- Data Protection Impact Assessment and Prior Consultation
8.1 Processor shall provide reasonable assistance to Controller with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
- Deletion or return of Company Personal Data
9.1 Subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.
9.2 Processor shall provide written certification to Controller that it has fully complied with this section 9 within 10 business days of the Cessation Date.
- Audit rights
10.1 Subject to this section 10, Processor shall make available to Controller on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by Controller or an auditor mandated by Controller in relation to the Processing of the Company Personal Data by the Contracted Processors.
10.2 Information and audit rights of Controller only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
- Data Transfer
11.1 The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) and/or Switzerland without the prior written consent of Controller. If personal data processed under this Agreement is transferred from a country within the European Economic Area or Switzerland to a country outside the European Economic Area or Switzerland, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
11.2 Any transfer to any country other than those aforementioned countries (“Third Countries”) also requires the prior approval of Controller in writing or in electronic format (e.g. e-mail) and must be in compliance with the regulations on transfers of personal data to third countries or international organizations (Art. 44 – 50 GDPR).
- Technical and Organizational Measures
Processor shall take the following technical and organizational security measures to protect personal data:
12.1 Organizational management and dedicated staff responsible for the development, implementation, and maintenance of Processor’s information security program.
12.2 Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to the Processor organization, monitoring and maintaining compliance with Processor policies and procedures, and reporting the condition of its information security and compliance to senior internal management.
12.3 Maintain Information security policies and make sure that policies and measures are regularly reviewed and where necessary, improve them.
12.4 Data security controls which include logical segregation of data, restricted (e.g. role-based) access and monitoring, and where applicable, utilization of commercially available and industry-standard encryption technologies.
12.5 Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know and least privilege basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access promptly when employment terminates or changes in job functions occur).
12.6 Password controls designed to manage and control password strength, and usage including prohibiting users from sharing passwords.
12.7 System audit or event logging and related monitoring procedures to proactively record user access and system activity for routine review.
12.8 Operational procedures and controls to provide for configuration, monitoring, and maintenance of technology and information systems according to prescribed internal and adopted industry standards, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from Processor possession.
12.9 Change management procedures and tracking mechanisms to designed to test, approve and monitor all changes to Processor technology and information assets.
12.10 Incident / problem management procedures designed to allow Processor to investigate, respond to, mitigate and notify of events related to Processor technology and information assets.
12.11 Vulnerability assessment, patch management, and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
12.12 Business resiliency/continuity and disaster recovery procedures, as appropriate, designed to maintain service and/or recovery from foreseeable emergency situations or disasters.
12.13 A Data Protection Officer (DPO) who is independent, regularly reviews data protection risks and controls.
- General Terms
13.1 Confidentiality. Each Party must keep any information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.
- Governing Law and Jurisdiction
14.1 This Agreement is governed by Canadian law.
14.2 Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of British Columbia, Canada.
Schedule 1: Service Description
The Service offered by Health Science X Technologies:
Health Science X Technologies designs, builds and engineers interactive experiences for both online and offline engagement. These experiences may at times include the collection of user or participant data to be used for further marketing or analysis of market conditions. In order to perform this work, Health Science X Technologies may utilize third party service providers to collect data.
Schedule 2: Data Processing and Security
- Description of the data processing carried out on behalf of the Controller
In addition to the information provided elsewhere in the Agreement, the Parties wish to document the following information in relation to the data processing activities.