US Data Processing Agreement

SECTION I

Art. 1

Purpose and scope

(a) The purpose of this Data Protection Agreement (the Agreement) is to set forth the respective obligations of each Party in processing personal data in compliance with the relevant data protection laws applicable to the processing of personal data carried out by the Parties.

(b) The Parties listed in Annex I have agreed to this Agreement in order to ensure compliance with those applicable data protection laws.

(d) Annexes I to V are an integral part of the Agreement.

Art. 2

Definitions

The following terms shall bear the meaning described:

- “Personal data” means any information relating to an identified or identifiable natural person;

- “Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

- “Covered Entity” means any natural or legal person which determines the purposes and means of the processing of personal data, and as defined under HIPAA;

- “Business Associate’ means a natural or legal person which processes personal data on behalf of the Covered Entity, and as defined under HIPAA;

- “Data Subject” means an individual to whom Personal Data relates;

- “Data Subject Request” means a Data Subject’s request to access, correct, amend, transfer, or delete that individual’s Personal Data consistent with that person’s rights under Data Protection Laws;

“Data breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996.

Art. 3

Hierarchy

In the event of a contradiction between this Agreement and the provisions of related agreements between the Parties existing at the time when this Agreement is agreed or entered into thereafter, this Agreement shall prevail.

SECTION II

OBLIGATIONS OF THE PARTIES

Art. 4

Description of processing(s)

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the Covered Entity, are specified in Annex II.

Art. 5

Obligations of the Parties

5.1. Instructions

(a) The Business Associate shall process personal data only on documented instructions from the Covered Entity, unless required to do so by the relevant data protection laws to which the Business Associate is subject. In this case, the Business Associate shall inform the Covered Entity of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the Covered Entity throughout the duration of the processing of personal data. These instructions shall always be documented.

5.2. Purpose limitation

The Business Associate shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the Covered Entity.

5.3. Duration of the processing of personal data

Processing by the Business Associate shall only take place for the duration specified in Annex II.

5.4. Security of processing

(a) The Business Associate shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.

(b) The Business Associate shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The Business Associate shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

5.5. Sensitive data

If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the Business Associate shall apply specific restrictions and/or additional safeguards.

5.6. Documentation and compliance

(a) The Parties shall be able to demonstrate compliance with this Agreement.

(b) The Business Associate shall deal promptly and adequately with inquiries from the Covered Entity about the processing of data in accordance with this Agreement.

(c) The Business Associate shall make available to the Covered Entity all information necessary to demonstrate compliance with the obligations that are set out in this Agreement and stem directly from the applicable Data protection laws. At the Covered Entity’s request, the Business Associate shall also permit and contribute to audits of the processing activities covered by this Agreement, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the Covered Entity may take into account relevant certifications held by the Business Associate.

(d) The Covered Entity may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the Business Associate and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in this Article, including the results of any audits, available to the competent supervisory authority/ies on request.

5.7. Use of sub-processors

(a) The Business Associate shall not subcontract any of its processing operations performed on behalf of the Covered Entity in accordance with this Agreement to a sub-Business Associate, without the Covered Entity’s prior specific written authorisation. The Business Associate shall submit the request for specific authorisation prior to the engagement of the sub-Business Associate in question, together with the information necessary to enable the Covered Entity to decide on the authorisation. The list of sub-processors authorised by the Covered Entity and term of notice can be found in Annex IV. The Parties shall keep Annex IV up to date.

(b) Where the Business Associate engages a sub-Business Associate for carrying out specific processing activities (on behalf of the Covered Entity), it shall do so by way of a contract which imposes on the sub-Business Associate, in substance, the same data protection obligations as the ones imposed on the Business Associate in accordance with this Agreement. The Business Associate shall ensure that the sub-Business Associate complies with the obligations to which the Business Associate is subject pursuant to this Agreement and to the applicable Data protection laws.

(c) At the Covered Entity’s request, the Business Associate shall provide a copy of such a sub-Business Associate agreement and any subsequent amendments to the Covered Entity. To the extent necessary to protect business secret or other confidential information, including personal data, the Business Associate may redact the text of the agreement prior to sharing the copy.

(d) The Business Associate shall remain fully responsible to the Covered Entity for the performance of the sub-Business Associate’s obligations in accordance with its contract with the Business Associate. The Business Associate shall notify the Covered Entity of any failure by the sub-Business Associate to fulfil its contractual obligations.

(e) The Business Associate shall agree a third party beneficiary clause with the sub-Business Associate whereby - in the event the Business Associate has factually disappeared, ceased to exist in law or has become insolvent - the Covered Entity shall have the right to terminate the sub-Business Associate contract and to instruct the sub-Business Associate to erase or return the personal data.

5.8. International transfers

(a) Any international transfer of data by the Business Associate shall be done only on the basis of the prior consent from the Covered Entity or in order to fulfil a specific requirement under the applicable Data protection laws to which the Business Associate is subject and shall take place in compliance with these Data protection laws.

(b) Standard Contractual Clauses (Annex V) will only apply to Customers’ personal data subject to the GDPR that is transferred, either directly or via onward transfer, to any Third Country (each a “Data Transfer”).

(c) The Covered Entity agrees that where the Business Associate engages a sub-Business Associate for carrying out specific processing activities (on behalf of the Covered Entity) and those processing activities involve an international transfer of personal data, the Business Associate and the sub-Business Associate can ensure compliance with the applicable Data protection laws by using the tools indicated in the applicable data protection laws, provided the conditions for the use of those tools are met.

Art. 6

Assistance to the Covered Entity

(a) The Business Associate shall promptly notify the Covered Entity of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the Covered Entity.

(b) Consistently with the applicable Data protection laws the Business Associate shall assist the Covered Entity in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the Business Associate shall comply with the Covered Entity’s instructions.

(c) In addition to the Business Associate’s obligation to assist the Covered Entity pursuant to article 6(b), when required, the Business Associate shall furthermore assist the Covered Entity in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the Business Associate:

the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;
the obligation to ensure that personal data is accurate and up to date, by informing the Covered Entity without delay if the Business Associate becomes aware that the personal data it is processing is inaccurate or has become outdated;
the obligations to adopt appropriate organisational and technical security measures to ensure a level of security appropriate to the risk.

(d) The Parties shall set out in Annex III the appropriate technical and organisational measures by which the Business Associate is required to assist the Covered Entity in the application of this article as well as the scope and the extent of the assistance required.

Art. 7

Notification of personal data breach

In the event of a personal data breach, the Business Associate shall cooperate with and assist the Covered Entity for the Covered Entity to comply with its obligations under the applicable Data protection laws, taking into account the nature of processing and the information available to the Business Associate.

7.1 Data breach concerning data processed by the Covered Entity

In the event of a personal data breach concerning data processed by the Covered Entity, the Business Associate shall assist the Covered Entity:

(a) in obtaining the following information:

the nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
the likely consequences of the personal data breach;
the measures taken or proposed to be taken by the Covered Entity to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

7.2 Data breach concerning data processed by the Business Associate

In the event of a personal data breach concerning data processed by the Business Associate, the Business Associate shall notify the Covered Entity without undue delay after the Business Associate having become aware of the breach. Such notification shall contain, at least:

(a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);

(b) the details of a contact point where more information concerning the personal data breach can be obtained;

(c) its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.

SECTION III

FINAL PROVISIONS

Art. 8

Non-compliance with the Agreement and termination

(a) In the event that the Business Associate is in breach of its obligations under this Agreement, the Covered Entity may instruct the Business Associate to suspend the processing of personal data until the latter complies with this Agreement or the contract is terminated. The Business Associate shall promptly inform the Covered Entity in case it is unable to comply with this Agreement, for whatever reason.

(b) The Covered Entity shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with this Agreement if:

the processing of personal data by the Business Associate has been suspended by the Covered Entity pursuant to point (a) and if compliance with this Agreement is not restored within a reasonable time and in any event within one month following suspension;
the Business Associate is in substantial or persistent breach of this Agreement;
the Business Associate fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to this Agreement or to the applicable Data protection laws.

(c) The Business Associate shall be entitled to terminate the contract insofar as it concerns processing of personal data under this Agreement where, after having informed the Covered Entity that its instructions infringe applicable legal requirements, the Covered Entity insists on compliance with the instructions.

(d) Following termination of the contract, the Business Associate shall, at the choice of the Covered Entity, delete or anonymize all personal data processed on behalf of the Covered Entity and certify to the Covered Entity that it has done so, or, return all the personal data to the Covered Entity and delete or anonymize existing copies unless the applicable Data protection laws requires storage of the personal data. Until the data is deleted/anonymized or returned, the Business Associate shall continue to ensure compliance with this Agreement.

ANNEX I

List of parties

Covered Entity

Name:

Address:

Contact person's name, position and contact details:

Signature and accession date:

Business Associate

Name: Upheal Inc.

Address: Middletown, Delaware, United States

Contact person's name, position and contact details: Martin Horvath, CTO, martin@upheal.io

Signature and accession date:

ANNEX II

Description of the processing

2.1. The purpose of the Business Associate’s processing of personal data on behalf of the Covered Entity is:

The purpose of the processing is the provision and maintenance of the App services provided as described in the relevant service agreement.

The main activities provided by the Business Associate are the following:

The Business Associate collects client personal data, transcribes the content of the discussion during the therapy session and provide the Covered Entity with summaries and insights
The Business Associate stores the transcripts and the Covered Entity’s notes
The Business Associate stores the audio and video session only if the Covered Entity decides to do so and the Clients have expressed their consent for the recording

2.2. The Business Associate’s processing of personal data on behalf of the Covered Entity shall mainly pertain to (the nature of the processing):

The Business Associate processes personal data only to the extent necessary to provide its services as agreed on the agreement in place with the Covered Entity.

The Covered Entity shall provide the Clients (and the organisation’s end users, where applicable) with its privacy policy and inform them about the processing activities carried out through the App.

The Covered Entity will ask for consent if needed in accordance with the applicable Data protection laws and regulations.

Once the Clients access the App and have provided consent, personal data is directly collected via App.

2.3. The processing may include the following types of personal data about data subjects:

Data subjects	Type/s of personal data (Identification Data/Health Data and specifications)
Provider	Identification data (e.g. name, surname, email address, phone number)
	Personal details (e.g. spoken language, country)
	Educational and professional data
	Recordings (e.g. audio and video of your sessions with clients)
	Usage data (therapy session date and time, length)
Clients	Identification data (e.g. name, surname, email address, phone number)
	Personal details (e.g. spoken language, country, sex)
	Recordings (e.g. audio and video of your sessions with clients)
	Potential health data, habits, lifestyle (e.g. session transcript & insights, clinical notes)
	Usage data (e.g. length of the session)

2.4.Processing includes the following categories of data subject (choose, delete or add):

Provider
Clients

2.5. The Business Associate’s processing of personal data on behalf of the Covered Entity may be performed when the Clauses commence. Processing has the following duration:

The duration of the process will be terminated one month after the termination of the service provision.

The Business Associate is allowed to process data for its own purposes of improving the App. In accordance with applicable data protection laws a specific privacy policy will be provided to the end users by the Business Associate to explain the processing activities the Business Associate carries out as a Covered Entity for this purpose.

ANNEX III

Technical and organisational measures including technical and organisational measures to ensure the security of the data

3.1. The subject of/instruction for the processing

The Business Associate’s processing of personal data on behalf of the Covered Entity shall be carried out by the Business Associate performing the activities mentioned in 2.1 with the following security measures:

Topic and requirement	Security measure implemented
Asset management	The Business Associate has an inventory of all IT assets involved in the solution (IT infrastructure, servers, workstations, mobile devices, software, etc.). The Business Associate updates the IT asset inventory periodically. The Business Associate has an Asset inventory and management policy and a Register of IT resources. The Business Associate has a policy that describes the proper use of BYOD devices.
Internal security measures	The Business Associate has an internal Acceptable use policy.
Network management	The Business Associate blocks by default all network ports on your backend firewall and only allows the specific traffic required for your services. The Business Associate ensures the application uses its own secure certificates, or certificates that are signed by a trust-verified certification authority, whose trustworthiness can be verified by services of the application.
Network encryption	All communications between the application and backend are encrypted using at least TLS 1.2. In case of transfer of data to external providers, the Business Associate ensures this data is encrypted when in transit. The Business Associate always uses HTTPS on all endpoints and data transfers. Sensitive data is transmitted only by secure channels.
Endpoint security	The Business Associate ensures that API URLs suppress sensitive information, such as API keys and session tokens. The End-to-End encryption is active when transmitting data between the components of the solution and also from the application to the backend.
Development management	The Business Associate ensures the use of strong passwords for accessing all software development tools and the codebase. The Business Associate maintains an accurate change log for all software updates. The Business Associate has a Secure application development policy.
Development environment	The Business Associate enforces the separation of environments between testing, staging and production. The Business Associate ensures all passwords for 3rd party provider logins are strong.
Code Quality	The Business Associate reviews all code regularly for bugs. The Business Associate uses automated tool(s) for code review. The Business Associate checks the code for both normal and abnormal (exceptional) error codes, handling them properly.
Application information security	The Business Associate ensures that no credentials are stored within the source code in any form. The Business Associate ensures no sensitive data can be exposed via inter-process communications (IPC). The Business Associate ensures no sensitive data is stored outside the app container. The Business Associate ensures no sensitive data is included in the application backup created by the OS.
Application testing	The Business Associate ensures that extensions and adaptations of the application developed have been sufficiently tested, in a manner that simulates real use and explicitly released before they are put into production. The Business Associate uses a tool for automatic end-to-end testing.
Infrastructure access control	The Business Associate limits superuser, root, privileged, or admin access to the necessary Upheal development team (the "users") and maintains a list of these. The Business Associate assigns privileged accounts to specific/identifiable individuals. The list of personnel and related accounts is periodically checked for appropriate privileges and deletion of unused accounts. The Business Associate has an Access Control policy in place.
Authentication management	The Business Associate enforces authentication for all non-public data. All authentication data is stored in a secure fashion.
Session management	The backend/API endpoint uses randomly generated session identifiers, with sufficient entropy and via established procedures, for the authentication. The token is signed using a secure algorithm. When a user logs out, all existing sessions terminate by the endpoint.
Multifactor authentication	The Business Associate implemented multi-factor authentication in the application.
Application access rights and login	The Business Associate ensures that users have access rights and permissions in line with their activities and roles, in order to prevent any kind of operation (read, write, copy, access, etc.) on data and systems (enforcing the "need-to-know" and "least privilege" principles). Each user has a unique login identifier. The Business Associate has a formal procedure for provisioning and deprovisioning a user.
Login failures and alerts	The endpoint blocks access after excessive failed authentication attempts.
Password management	The Business Associate enforces the use of a password that has a minimum length (e.g. at least 8 characters) to login to the application. The Business Associate implements mechanisms to make it harder to guess login parameters (username and password). The reuse of previous passwords by users is prevented. The password change process prevents the use of the old password. The Business Associate ensures that passwords are never transmitted or stored in clear text.
Data encryption	All sensitive data is encrypted using a strong encryption method. All personal data are encrypted using a strong encryption method.
Data minimisation	The application provides the minimisation of the data collected (only the data strictly necessary for the application). The Business Associate ensures that it minimises unnecessary duplication of data within the system.
Data quality / integrity	The Business Associate ensures that all data updates are immediately propagated to all systems that need them. The Business Associate ensures that all data updates are immediately propagated to all systems that need them.
Data deletion	The Business Associate has a mechanism in place to automatically delete data once it has reached its maximum storage time, also in backups.
Data separation / pseudonymisation	The Business Associate pseudonymises data.
Backup	The Business Associate performs backups of all personal data in the application at record-level. The Business Associate also performs backups of all authentication data. The Business Associate also performs backups of all encryption keys. Backups are taken frequently. These backups are taken automatically. These backups are encrypted. The Business Associate has a mechanism to check the integrity of the backups. The Business Associate stores backups in a different physical location from your main servers. The Business Associate verifies backups regularly, through restore tests.
Business Continuity	The Business Associate has a Business continuity plan, that is tested once a year and periodically updated.
Disaster planning	The Business Associate has a Disaster Recovery plan.
Logging system	The Business Associate has a system for logging all data operations (creation, reading, updating, deletion, transmission and migration). The Business Associate has audit records containing detailed information related to file access. The Business Associate has a system for logging all accesses to the application's backend. Logs are collected in a central system. The Business Associate limits access to the logging system to authorised personnel. The logging system has a means of verifying the integrity of the logs.
Log management	The Business Associate has a process for regularly reviewing these logs for potential incidents. Logs are protected against tampering or editing. The Business Associate logs all activities by administrators, super users and other accounts with privileged access. The Business Associate ensures that logs don't contain personal data (e.g. only pointers or pseudonyms). The Business Associate retains these logs for at least 6 months. The Business Associate has a policy for the monitoring of logs of the systems involved in the project.
Standard of Security declared	The Business Associate's cloud providers implement protection against malware, DDoS and other forms of unwanted traffic.
Level of service	The Business Associate has checked the limits on data storage and ensured these are adequate for the current and future needs of the application. The Business Associate checks if SLAs/MSAs/BAAs stated in the contract with the provider fit its business needs. The Business Associate checks if the providers and their sub-Business Associates permanently delete the data on request or termination of the service.
Company Organisation	Roles, responsibilities and interactions between all data protection stakeholders have been clearly defined. Segregation of roles (between CTO, security auditor and DPO) is in place. A Security Officer has been formally appointed. The tasks and responsibilities of the security officer are also clearly set and documented. A specific person has been assigned to the task of maintaining and updating the register of IT resources.
Personnel Management	The Business Associate ensures that personnel who have access to personal data are qualified for their job and adequately trained on relevant data protection requirements and legal obligations. Personnel that deal with data subjects are trained to recognise data subject rights' requests. The Business Associate has structured regular training programmes for personnel, including specific programmes (on data protection matters) for newcomers. A training plan with defined goals and objectives has been prepared and is executed on an annual basis. Personnel have been informed about the existence of the internal policies and can easily access them.

3.2. Assistance to the Covered Entity

The Business Associate shall insofar as this is possible – within the scope and the extent of the assistance specified below – assist the Covered Entity by implementing the technical and organisational measures mentioned in 3.1.

3.3. Storage period/erasure procedures

Personal data is deleted immediately after the termination of the service provision, after which it will be deleted or anonymized by the Business Associate.

Upon termination of the provision of personal data processing services, the Business Associate shall either delete/anonymize or return the personal data in accordance with Clause 11.1., unless the Covered Entity – after the signature of the contract – has modified the Covered Entity’s original choice. Such modification shall be documented and kept in writing, including electronically, in connection with the Agreement.

3.4 Processing location

Processing of the personal data under this Agreement cannot be performed at other locations than the following without the Covered Entity’s prior written authorisation:

In the country of the Covered Entity, in the US, European Union, or in the Countries where the Sub-Processors are established (see 4.1).

3.5. Instruction on the transfer of personal data to third countries

All international transfer of data shall be possible only in compliance with the appropriate safeguards adopted according to the applicable Data protection laws.

Only the sub-processors mentioned in the Appendix IV can access the data necessary for the provision of their service.

3.6. Procedures for the Covered Entity’s audits, including inspections, of the processing of personal data being performed by the Business Associate

The Covered Entity or the Covered Entity’s representative may with an advice of 10 days perform a physical inspection of the places, where the processing of personal data is carried out by the Business Associate, including physical facilities as well as systems used for and related to the processing to ascertain the Business Associate’s compliance with the applicable Data protection laws.

In addition to the planned inspection, the Covered Entity may perform an inspection of the Business Associate when the Covered Entity deems it required.

The Covered Entity’s and Business Associate’s costs, if applicable, relating to physical inspection shall be defrayed by the Covered Entity.

Data Processing Agreement

Upheal, Inc.