EU/UK Data Processing Agreement

SECTION I

Art. 1

Purpose and scope

(a) This Data Processing Agreement ("DPA") forms part of the Terms of Service ordered by the Customer under an Order Form (the "Agreement"). The purpose of this DPA 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 DPA in order to ensure compliance with those applicable data protection laws.

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

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;
“Controller” means any natural or legal person which determines the purposes and means of the processing of Personal Data, and as defined under GDPR and UK GDPR;
“Processor’ means a natural or legal person which processes Personal Data on behalf of the Controller, and as defined under GDPR and UK GDPR;
“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;
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679); and,
“UK GDPR’ means EU GDPR as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018.

Terms including ‘data subject’, ‘data subject access request’, ‘processes’ and ‘sensitive data’ shall have the same meaning as under GDPR and UK GDPR.

Art. 3

Hierarchy

In the event of a contradiction between this DPA and the provisions of related agreements between the Parties existing at the time when this DPA is agreed or entered into thereafter, this DPA 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 Controller, are specified in Annex II.

Art. 5

Obligations of the Parties

5.1. Instructions

(a) The Processor shall process Personal Data only on documented instructions from the Controller, unless required to do so by the relevant data protection laws to which the Processor is subject. In this case, the Processor shall inform the Controller 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 Controller throughout the duration of the processing of Personal Data. These instructions shall always be documented.

5.2. Purpose limitation

The Processor 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 Controller.

5.3. Duration of the processing of personal data

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

5.4. Security of processing

(a) The Processor 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 Processor 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 Processor 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 Processor shall apply specific restrictions and/or additional safeguards.

5.6. Documentation and compliance

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

(b) The Processor shall deal promptly and adequately with inquiries from the Controller about the processing of data in accordance with this DPA.

(c) The Processor shall make available to the Controller all information necessary to demonstrate compliance with the obligations that are set out in this DPA and stem directly from the applicable Data protection laws. At the Controller’s request, the Processor shall also provide access to the most up-to-date report indicating organizational and technical security measures, as audited against the framework ISO/IEC 27001:2022.

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

5.7. Use of sub-processors

(a) The Processor may subcontract its processing operations performed on behalf of the Controller in accordance with this DPA to a sub-processor, upon the Controller’s written notice. By entering into this DPA, the Controller agrees to the current list of sub-processors found in Annex IV. The Parties shall keep Annex IV up to date.

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

(c) The Processor shall remain responsible to the Controller for the performance of the sub-processor’s obligations in accordance with its contract with the Processor. The Processor shall notify the Controller of any failure by the sub-processor to fulfil its contractual obligations.

5.8. International transfers

(a) Any international transfer of data by the Processor shall be done only to meet the applicable data protection laws to which the Processor is subject and shall take place in compliance with these data protection laws.

(b) Standard Contractual Clauses will 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 Parties agree that any ex-EEA Data Transfers are made pursuant to the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:

Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Company is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.
Module Three (Processor to Sub-Processor) of the EU SCCs apply when Customer is a processor and Company is processing Personal Data on behalf of Customer as a sub-processor.

For each module, where applicable the following applies:

The optional docking clause in Clause 7 does not apply.
In Clause 11, the optional language does not apply;
All square brackets in Clause 13 are hereby removed;
In Clause 17 (Option 1), the EU SCCs will be governed by Czech law.
In Clause 18(b), disputes will be resolved before the courts of Czechia;
Annex II to this DPA contains the information required in Annex I and Annex III of the EU SCCs;
Annex III to this DPA contains the information required in Annex II of the EU SCCs; and

By entering into this DPA, the parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes.

(d) The parties agree that ex-UK Data Transfers are made pursuant to the UK SCCs, which are deemed entered into and incorporated into this DPA by reference, and amended and completed in accordance with the UK Addendum, which is incorporated herein as Annex V of this DPA.

Art. 6

Assistance to the Controller

(a) The Processor shall promptly notify the Controller 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 Controller.

(b) Consistently with the applicable Data protection laws the Processor shall assist the Controller 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 Processor shall comply with the Controller’s instructions.

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

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 Controller without delay if the Processor 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 Processor is required to assist the Controller 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 Processor shall cooperate with and assist the Controller for the Controller to comply with its obligations under the applicable Data protection laws, taking into account the nature of processing and the information available to the Processor.

7.1 Data breach concerning data processed by the Customer

In the event of a Personal Data breach concerning data processed by the Controller, the Processor shall assist the Controller:

(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 Controller 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 Processor

In the event of a Personal Data breach concerning data processed by the Processor, the Processor shall notify the Controller without undue delay after the Processor having become aware of the breach. Such notification shall contain, at least:

a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);
the details of a contact point where more information concerning the Personal Data breach can be obtained;
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 DPA and termination

Non-compliance with the DPA and termination

(a) In the event that the Processor is in breach of its obligations under this DPA, the Controller may instruct the Processor to suspend the processing of Personal Data until the latter complies with this DPA or the contract is terminated. The Processor shall promptly inform the Controller in case it is unable to comply with this DPA, for whatever reason.

(b) The Controller shall be entitled to terminate the contract insofar as it concerns processing of Personal Data in accordance with this DPA if:

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

(c)The Processor shall be entitled to terminate the contract insofar as it concerns processing of Personal Data under this DPA where, after having informed the Controller that its instructions infringe applicable legal requirements, the Controller insists on compliance with the instructions.

(d) Following termination of the contract, the Processor shall, at the choice of the Controller, delete or anonymize all Personal Data processed on behalf of the Controller and certify to the Controller that it has done so, or, return all the Personal Data to the Controller 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 Processor shall continue to ensure compliance with this DPA.

ANNEX I

List of parties

Customer

Name: The 'Customer'

Address: As provided in the Agreement

Contact person's name, position and contact details: As provided in the Agreement

Signature and accession date:

Processor

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 Processor’s processing of Personal Data on behalf of the Controller 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 Processor are the following:

The Processor processes client Personal Data as provided by the Controller, for the purposes outlined in the relevant service agreement between the Parties.
The Processor stores the audio and video session only if the Controller decides to do so and the Clients have expressed their consent for the recording.

2.2. The Processor’s processing of Personal Data on behalf of the Controller:

The Processor processes Personal Data only to the extent necessary to provide its services as agreed on the relevant service agreement in place with the Controller.

The Controller 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 Controller 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)
	Billing information

2.4.Processing includes the following categories of data subject: (

Provider
Clients

2.5. The Processor’s processing of Personal Data on behalf of the Controller 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 Processor 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 Processor to explain the processing activities the Processor carries out as a Controller 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 Processor’s processing of Personal Data on behalf of the Controller shall be carried out by the Processor performing the activities mentioned in 2.1 with the following security measures:

Topic and requirement	Security measure implemented
Asset management	The Processor has an inventory of all IT assets involved in the solution (IT infrastructure, servers, workstations, mobile devices, software, etc.). The Processor updates the IT asset inventory periodically. The Processor has an Asset inventory and management policy and a Register of IT resources. The Processor has a policy that describes the proper use of BYOD devices.
Internal security measures	The Processor has an internal Acceptable use policy.
Network management	The Processor blocks by default all network ports on your backend firewall and only allows the specific traffic required for your services. The Processor 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 data to external providers, the Processor ensures this data is encrypted when in transit. The Processor always uses HTTPS on all endpoints and data transfers. Sensitive data is transmitted only by secure channels.
Endpoint security	The Processor 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 Processor ensures the use of strong passwords for accessing all software development tools and the codebase. The Processor maintains an accurate change log for all software updates. The Processor has a Secure application development policy.
Development environment	The Processor enforces the separation of environments between testing, staging and production. The Processor ensures all passwords for 3rd party provider logins are strong.
Code Quality	The Processor reviews all code regularly for bugs. The Processor uses automated tool(s) for code review. The Processor checks the code for both normal and abnormal (exceptionals) error codes, handling them properly.
Application information security	The Processor ensures that no credentials are stored within the source code in any form. The Processor ensures no sensitive data can be exposed via inter-process communications (IPC). The Processor ensures no sensitive data is stored outside the app container. The Processor ensures no sensitive data is included in the application backup created by the OS.
Application testing	The Processor 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 Processor uses a tool for automatic end-to-end testing.
Infrastructure access control	The Processor limits superuser, root, privileged, or admin access to the necessary Upheal development team (the "users") and maintains a list of these. The Processor 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 Processor has an Access Control policy in place.
Authentication management	The Processor 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 Processor implemented multi-factor authentication in the application.
Application access rights and login	The Processor 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 Processor 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 Processor enforces the use of a password that has a minimum length (e.g. at least 8 characters) to login to the application. The Processor 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 Processor 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 Processor ensures that it minimises unnecessary duplication of data within the system.
Data quality / integrity	The Processor ensures that all data updates are immediately propagated to all systems that need them. The Processor ensures that all data updates are immediately propagated to all systems that need them.
Data deletion	The Processor has a mechanism in place to automatically delete data once it has reached its maximum storage time, also in backups.
Data separation / pseudonymisation	The Processor pseudonymises data.
Backup	The Processor performs backups of all Personal Data in the application at record-level. The Processor also performs backups of all authentication data. The Processor also performs backups of all encryption keys. Backups are taken frequently. These backups are taken automatically. These backups are encrypted. The Processor has a mechanism to check the integrity of the backups. The Processor stores backups in a different physical location from your main servers. The Processor verifies backups regularly, through restore tests.
Business Continuity	The Processor has a Business continuity plan, that is tested once a year and periodically updated.
Disaster planning	The Processor has a Disaster Recovery plan.
Logging system	The Processor has a system for logging all data operations (creation, reading, updating, deletion, transmission and migration). The Processor has audit records containing detailed information related to file access. The Processor has a system for logging all accesses to the application's backend. Logs are collected in a central system. The Processor 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 Processor has a process for regularly reviewing these logs for potential incidents. Logs are protected against tampering or editing. The Processor logs all activities by administrators, super users and other accounts with privileged access. The Processor ensures that logs don't contain Personal Data (e.g. only pointers or pseudonyms). The Processor retains these logs for at least 6 months. The Processor has a policy for the monitoring of logs of the systems involved in the project.
Standard of Security declared	The Processor's cloud providers implement protection against malware, DDoS and other forms of unwanted traffic.
Level of service	The Processor has checked the limits on data storage and ensured these are adequate for the current and future needs of the application. The Processor checks if SLAs/MSAs/BAAs stated in the contract with the provider fit its business needs. The Processor checks if the providers and their sub Processors 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 should also be clearly set and documented. A specific person has been assigned to the task of maintaining and updating the register of the IT resources.
Personnel Management	The Processor ensures that personnel who have access to Personal Data are qualified for its job and adequately trained on relevant data protection requirements and legal obligations. Personnel that deals with data subjects is trained to recognise data subject rights' requests. The Processor has structured regular training programmes for personnel, including specific programmes (on data protection matters) for the 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 they can easily access them.

3.2. Assistance to the Controller

The Processor shall insofar as this is possible – within the scope and the extent of the assistance specified below – assist the Controller 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 Processor.

Upon termination of the provision of Personal Data processing services, the Processor shall either delete/anonymize or return the Personal Data in accordance with Clause 11.1., unless the Controller – after the signature of the contract – has modified the Controller’s original choice. Such modification shall be documented and kept in writing, including electronically, in connection with the DPA.

3.4. 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.

ANNEX IV

List of sub-processors

4.1. Approved Sub-Processors

On commencement of the Clauses, the Controller authorises the engagement of the Sub-Processors found at this link on the date of signature: https://trust.upheal.io/

4.2. Prior notice for the authorisation of sub-processors

The time period of prior notice for authorisation of sub-processors is 10 business days.

4.3 CCPA notice for Californian residents

Upheal does not sell personal information of any Californian residents to Sub-Processors.

Data Processing Agreement

Upheal, Inc.