Data Processing Agreement

PARTIES AND BACKGROUND

Customer (“Customer”) has entered into an agreement with Medentic, LLC. (“Medentic”) (each a “Party” and collectively the “Parties”) under which Medentic has agreed to provide the Services in accordance with such agreement (the “Agreement”). This Data Processing Agreement (the “DPA”) is incorporated into and forms part of the Agreement and shall be effective on the effective date of the Agreement, except that for customers that have entered into an Agreement before the DPA updated date above, the DPA shall be effective on October 11, 2023 and shall replace any previously agreed data processing and security terms.

To the extent that Medentic processes any Customer Personal Data (as defined below) on behalf of the Customer (or, where applicable, the Customer Affiliate) in connection with the provision of the Services, the Parties have agreed that it shall do so on the terms of this DPA.

1. DEFINITIONS

1.1 Capitalized terms used but not defined within this DPA shall have the meaning set forth in the Agreement. The following capitalized terms used in this DPA shall be defined as follows:

• “Account Information” means Customer’s information, including Personal Data of Customer and Customer Affiliate’s users, provided for account creation, access, administration, and maintenance, and may include names, usernames, login credentials, phone numbers, email addresses and billing information associated with a Medentic account;
• “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a Party and is a beneficiary of the Agreement;
• “Applicable Data Protection Laws” means all applicable laws, rules, regulations and governmental requirements relating to the privacy, confidentiality, or security of Personal Data, as they may be amended or otherwise updated from time to time;
• “Approved Addendum” means the template addendum, version B.1.0 issued by the UK Information Commissioner under S119A(1) Data Protection Act 2018 and laid before the UK Parliament on 2 February 2022, as it may be revised according to Section 18 of the Mandatory Clauses;
• “Customer Personal Data” means the Personal Data processed by Medentic on behalf of Customer or Customer Affiliate in connection with the provision of the Services, which, however, specifically excludes Personal Data contained in Account Information;
• “DPF” or “Data Privacy Framework” means the EU-U.S. Data Privacy Framework, or where applicable, the UK Extension to the EU-U.S. Data Privacy Framework and the Swiss-U.S. Data Privacy Framework;
• “EEA” means the European Economic Area;
• “Effective Date” means the date that the DPA is effective, as set forth in clause (A) above;
• “GDPR” means Regulation (EU) 2016/679 (the “EU GDPR”) or, where applicable, the “UK GDPR” as defined in section 3 of the Data Protection Act 2018;
• “Mandatory Clauses” means “Part 2: Mandatory Clauses” of the Approved Addendum;
• “Member State” means a member state of the EEA, being a member state of the European Union, Iceland, Norway, or Liechtenstein;
• “Personal Data” means any information relating to an identified or identifiable individual or device, or is otherwise “personal data,” “personal information,” “personally identifiable information” and similar terms, and such terms shall have the same meaning as defined by applicable data protection laws;
• “Security Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to, Customer Personal Data;
• “Standard Contractual Clauses” or “SCCs” means Module Two (controller to processor) and/or Module Three (processor to processor) of the Standard Contractual Clauses annexed to Commission Implementing Decision (EU) 2021/914;
• “Sub-processor” means Medentic Affiliates and third-party processors appointed by Medentic to process Customer Personal Data;
• “UK” means the United Kingdom of Great Britain and Northern Ireland;
• “US Data Protection Laws” means, to the extent applicable, federal and state laws relating to data protection, the Processing of Personal Data, privacy and/or data protection in force from time to time in the United States.

1.2 The terms “controller”, “processor”, “data subject”, “process”, “supervisory authority” “sell”, and “service provider” shall have the same meaning as set out in the Applicable Data Protection Laws.

2. INTERACTION WITH THE AGREEMENT

2.1 This DPA supplements and (in case of contradictions) supersedes the Agreement with respect to any processing of Customer Personal Data.

2.2 With respect to Customer Affiliates, by entering into the Agreement Customer warrants it is duly authorized to enter into this DPA for and on behalf of any such Customer Affiliates and, subject to clause 2.3, each Customer Affiliate shall be bound by the terms of this DPA as if they were the Customer.

2.3 Customer warrants that it is duly mandated by any Customer Affiliates on whose behalf Medentic processes Customer Personal Data in accordance with this DPA to (a) enforce the terms of this DPA on behalf of the Customer Affiliates, and to act on behalf of the Customer Affiliates in the administration and conduct of any claims arising in connection with this DPA; and (b) receive and respond to any notices or communications under this DPA on behalf of Customer Affiliates.

2.4 The Parties agree that any notice or communication sent by Medentic to Customer shall satisfy any obligation to send such notice or communication to a Customer Affiliate.

3. ROLE OF THE PARTIES

3.1 The Parties acknowledge and agree that:

• (a) for the purposes of the GDPR, Medentic acts as “processor” or “sub-processor.” Medentic’s function as processor or sub-processor will be determined by the function of Customer:
  • (i) In general, Customer functions as a controller, whereas Medentic functions as a processor.
  • (ii) In certain cases, Customer functions as a processor on behalf of Customer’s customers where Customer and Customer’s customer have concluded a data processing agreement in relation to the processing of Personal Data of Customer’s customers; and
• (b) for the purposes of the US Data Protection Laws, Medentic will act as a “service provider” or “processor” in its performance of its obligations pursuant to the Agreement.
• (c) Account Information, shall not be governed by this DPA and shall be subject to Medentic’s Privacy Notice.

4. DETAILS OF DATA PROCESSING

4.1 The details of data processing (such as subject matter, nature and purpose of the processing, categories of Personal Data and data subjects) are described in the Agreement and in Schedule 1.

4.2 Customer Personal Data will only be processed on behalf of and under the instructions of Customer and in accordance with Applicable Data Protection Laws. The Agreement and this DPA shall be Customer’s instructions for the processing of Customer Personal Data. Customer may issue further written instructions in accordance with this DPA.

4.3 If Customer’s instructions will cause Medentic to process Customer Personal Data in violation of Applicable Data Protection Laws or outside the scope of the Agreement or the DPA, Medentic shall promptly inform Customer thereof, unless prohibited by Applicable Data Protection Laws (without prejudice to the SCCs).

4.4 Medentic may store and process Customer Personal Data anywhere Medentic or its Sub-processors maintain facilities, subject to clause 5 of this DPA.

5. SUB-PROCESSORS

5.1 Customer grants Medentic general authorization to engage Sub-processors, subject to clause 5.2, from an agreed list, as well as Medentic’s current Sub-processors listed at subprocessors as of the Effective Date.

5.2 Medentic shall (i) enter into a written agreement with each Sub-processor imposing data protection obligations no less protective of Customer Personal Data than Medentic’s obligations under this DPA to the extent applicable to the nature of the services provided by such Sub-processor; and (ii) remain liable for each Sub-processor’s compliance with the obligations under this DPA.

5.3 Medentic shall provide Customer with at least fifteen (15) days’ notice of any proposed changes to the Sub-processors it uses to process Customer Personal Data (including any addition or replacement of any Sub-processors).

Customer may reasonably object to Medentic’s use of a new Sub-processor (including when exercising its right to object under clause 9(a) of the SCCs) by providing Medentic with written notice of the objection within ten (10) days after Medentic has provided notice to Customer of such proposed change (an “Objection”). In the event Customer objects to Medentic’s use of a new Sub-processor, Customer and Medentic will work together in good faith to find a mutually acceptable resolution to address such Objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, either party may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to the other party. During any such Objection period, Medentic may suspend the affected portion of the Services.

6. DATA SUBJECT RIGHTS REQUESTS

6.1 As between the Parties, Customer shall have sole discretion and responsibility in responding to the rights asserted by any individual in relation to Customer Personal Data (“Data Subject Request”).

6.2 Medentic will forward to Customer without undue delay any Data Subject Request received by Medentic or any Sub-processor from an individual in relation to their Customer Personal Data and may advise the individual to submit their request directly to Customer.

6.3 Medentic will (taking into account the nature of the processing of Customer Personal Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to fulfill its obligation under Applicable Data Protection Laws to respond to Data Subject Requests. Medentic may charge Customer, and Customer shall reimburse Medentic, for any such assistance beyond providing self-service features included as part of the Services.

7. SECURITY AND AUDITS

7.1 Medentic will implement and maintain appropriate technical and organizational data protection and security measures designed to ensure security of Customer Personal Data, including, without limitation, protection against unauthorized or unlawful processing (including, without limitation, unauthorized or unlawful disclosure of, access to and/or alteration of Customer Personal Data) and against accidental loss, destruction, or damage of or to it.

7.2 Medentic will implement and maintain as a minimum standard the measures set out in Schedule 2. Medentic may update or modify the security measures set out in Schedule 2 from time to time, including (where applicable) following any review by Medentic of such measures in accordance with clause 8.6 of the SCCs, provided that such updates and/or modifications do not reduce the overall level of protection afforded to the Customer Personal Data by Medentic under this DPA.

7.3 Customer or its independent third-party auditor reasonably acceptable to Medentic (which shall not include any auditors who are not suitably qualified or independent or are a competitor of Medentic) may audit Medentic’s compliance with its obligations under this DPA up to once per year, or more frequently in the event a Security Incident has occurred or to the extent required by applicable data protection laws, including where mandated by Customer’s regulatory or governmental authority.

7.4 To request an audit, Customer must submit a detailed proposed audit plan to Medentic at least two weeks in advance of the proposed audit date. Medentic will review the proposed audit plan and work cooperatively with Customer to agree on a final audit plan. All such audits must be conducted during regular business hours, subject to the agreed final audit plan and Medentic’s health and safety or other relevant policies, and may not unreasonably interfere with Medentic business activities. Nothing in this clause 7.4 shall require Medentic to breach any duties of confidentiality.

7.5 If the requested audit scope is addressed in an ISO 27001 certification, SOC 2 Type 2 report or similar audit report performed by a qualified third-party auditor within twelve (12) months of Customer’s audit request and Medentic confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.

7.6 Customer will promptly notify Medentic of any non-compliance discovered during the course of an audit and provide Medentic any audit reports generated in connection with any audit, unless prohibited by applicable law or otherwise instructed by a regulatory or governmental authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this DPA.

7.7 Any audits are at Customer’s expense. Customer shall reimburse Medentic for any time expended by Medentic or its Sub-processors in connection with such audits.

7.8 Medentic shall audit its Sub-processors on a regular basis and will, upon Customer’s request, confirm their compliance with data protection law and the obligations set upon Sub-processors according to the data processing agreement concluded with them. Customer may request Medentic to conduct further audits only in the event reasonably justified, and in such cases Medentic will conduct further audits to the extent permissible.

7.9 Customer acknowledges and agrees that, 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, the security measures set out in Schedule 2 are appropriate to ensure the security of the Customer Personal Data.

8. SECURITY INCIDENTS

Medentic will promptly notify Customer in writing in the event of any breach of this DPA, Applicable Data Protection Laws or any instruction by Customer in connection with the processing of Customer Personal Data under this DPA. Without limiting the generality of the foregoing, Medentic shall notify Customer in writing without undue delay after becoming aware of any Security Incident, and reasonably cooperate in the investigation of any such Security Incident and any obligation of Customer under Applicable Data Protection Laws to make any notifications to individuals, supervisory authorities, governmental or other regulatory authority, or the public in respect of such Security Incident. Medentic shall take reasonable steps to contain, investigate, and mitigate any Security Incident, and shall, without undue delay, send Customer timely information about the Security Incident, including, but not limited to, the nature of the Security Incident, the measures taken to mitigate or contain the Security Incident, and the status of the investigation. Medentic’s notification of or response to a Security Incident under this clause 8 will not be construed as an acknowledgement by Medentic of any fault or liability with respect to the Security Incident.

9. DELETION AND RETURN

Medentic shall (a) if requested to do so by Customer by the date of termination or expiry of the Agreement, return a copy of all Customer Personal Data or provide self-service functionality allowing Customer to do the same; and (b) within 90 days of the termination or expiry of the Agreement, delete and use all reasonable efforts to procure the deletion of all other copies of Customer Personal Data processed by Medentic or any Sub-processors.

10. CONTRACT PERIOD

This DPA will commence on the Effective Date and, notwithstanding any termination of the Agreement, will remain in effect until, and automatically expire upon, Medentic’s deletion of all Customer Personal Data as described in this DPA.

11. CROSS-BORDER DATA TRANSFERS

The Parties agree that the terms of the Standard Contractual Clauses Module Two (Controller to Processor) and Module Three (Processor to Processor), as further specified in Schedule 3 of this DPA, are hereby incorporated by reference and shall be deemed to have been executed by the Parties and apply to any transfers of Customer Personal Data falling within the scope of the GDPR from Customer (as data exporter) to Medentic (as data importer) to the extent and for as long as Medentic cannot rely on the DPF according to clause 11.2.

Medentic is self-certified under the DPF and complies with the data privacy principles thereunder. To the extent and for as long as the DPF is acknowledged as a valid transfer mechanism in the relevant country/region, Personal Data originating from the EEA, UK, or Switzerland, or otherwise being subject to the GDPR shall be transferred on the basis of the DPF.

Medentic will provide Customer reasonable support to enable Customer’s compliance with the requirements imposed on the transfer of personal data to third countries with respect to data subjects located in the EEA, Switzerland, and UK. Medentic will, upon Customer’s request, provide information to Customer which is reasonably necessary for Customer to complete a transfer impact assessment (“TIA”).

Medentic further agrees to implement the supplementary measures agreed upon and set forth in Schedule 4 of this DPA in order to enable Customer’s compliance with requirements imposed on the transfer of personal data to third countries. Medentic may charge Customer, and Customer shall reimburse Medentic, for any assistance provided by Medentic with respect to any TIAs, data protection impact assessments or consultation with any supervisory authority of Customer.

12. CUSTOMER PERSONAL DATA SUBJECT TO THE UK AND SWISS DATA PROTECTION LAWS

To the extent that the processing of Customer Personal Data is subject to UK or Swiss data protection laws, the UK Addendum and/or Swiss Addendum (as applicable) set out in Schedule 5 shall apply.

13. CUSTOMER PERSONAL DATA SUBJECT TO US DATA PRIVACY LAWS

To the extent that the processing of Customer Personal Data is subject to us Data Protection Laws, the U.S. Addendum set out in Schedule 6 shall apply.

14. GENERAL

14.1 The Parties hereby certify that they understand the requirements in this DPA and will comply with them.

14.2 This DPA and the Agreement set forth the entire agreement between the Parties with respect to the subject matter of this DPA.