For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, the non-Wellable legal entity accepting these Clauses (as “Data Exporter”) and Wellable, LLC (as “Data Importer”, whose signature appears below), each a “party,” together “the parties,” have agreed on the following Contractual Clauses (the “Clauses” or “Standard Contractual Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Execution of the applicable Service Agreement by Data Exporter includes execution of these Clauses, which are countersigned by Wellable, LLC.
If you are accepting on behalf of the Data Exporter, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand the Clauses; and (iii) you agree, on behalf of the party that you represent, to the Clauses.
Clause 1: Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘Data Subject’ and ‘Supervisory Authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the Data Exporter’ means the controller who transfers the personal data;
(c) ‘the Data Importer’ means the processor who agrees to receive from the Data Exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25 (1) of Directive 95/46/EC;
(d) ‘the Subprocessor’ means any processor engaged by the Data Importer or by any other subprocessor of the Data Importer who agrees to receive from the Data Importer or from any other subprocessor of the Data Importer personal data exclusively intended for processing activities to be carried out on behalf of the Data Exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the Data Exporter is established;
(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2: Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3: Third-party beneficiary clause
Clause 4: Obligations of the Data Exporter
The Data Exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the Data Exporter is established) and does not violate the relevant provisions of that State
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the Data Exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation.
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the Data Subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any Subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the Data Exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the Data Subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a Subprocessor providing at least the same level of protection for the personal data and the rights of Data Subject as the Data Importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5: Obligations of the Data Importer
The Data Importer agrees and warrants:
(a) to process the personal data only on behalf of the Data Exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the Data Exporter of its inability to comply, in which case the Data Exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the Data Exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the Data Exporter as soon as it is aware, in which case the Data Exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the Data Exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorized access; and
(iii) any request received directly from the Data Subjects without responding to that request, unless it has been otherwise authorized to do so;
(e) to deal promptly and properly with all inquiries from the Data Exporter relating to its processing of the personal Data Subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the Data Exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the Data Exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the Data Exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the Data Subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the Data Subject is unable to obtain a copy from the Data Exporter;
(h) that, in the event of sub-processing, it has previously informed the Data Exporter and obtained its prior written consent;
(i) that the processing services by the Subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any Subprocessor agreement it concludes under the Clauses to the Data Exporter.
Clause 6: Liability
Clause 7: Mediation and jurisdiction
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the Data Exporter is established.
Clause 8: Cooperation with supervisory authorities
Clause 9: Governing Law
The Clauses shall be governed by the law of the Member State in which the Data Exporter is established.
Clause 10: Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11: Sub-Processing
Clause 12: Obligation after the termination of personal data processing services
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses
Data Exporter: The Data Exporter is the non-Wellable legal entity that is a party to the Clauses.
Data Importer: The Data Importer is Wellable, LLC, a provider of wellness technology services for businesses and consumers.
Data Subjects: Data subjects include the individuals about whom data is provided to Wellable via the Services (as defined in the Service Agreement) by (or at the direction of) Data Exporter.
Categories of data: The personal data transferred includes data relating to individuals provided to Wellable via the Services by (or at the direction of) Data Exporter.
Processing operations: The personal data transferred will be subject to the following basic processing activities:
Scope of Processing. The Clauses reflect the parties’ agreement with respect to the processing and transfer of personal data specified in this Appendix pursuant to the provision of the Services. The Data Exporter instructs the Data Importer to process personal data in the countries in which the Data Importer maintains facilities.
Term of Data Processing. Data processing will be for the term designated under the applicable Service Agreement with Data Exporter.
Access to Data. During the term of the Service Agreement, the Data Importer will provide the Data Exporter with access to, and the ability to rectify, restrict processing of and export the Data Exporter’s personal data from the Services in accordance with the Service Agreement.
Data Deletion. Upon expiration or termination of the Service Agreement, Data Exporter may extract the Data Exporter’s personal data and data importer will delete such personal data.
Subprocessors: The Data Importer may engage Subprocessors to provide parts of the Services. The Data Importer will ensure Subprocessors only access and use the Data Exporter’s personal data to provide the Services and not for any other purpose.
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses.
Description of the technical and organizational security measures implemented by the Data Importer in accordance with Clauses 4(c) and 5(c): The Data Importer currently abides by the security standards in this Appendix 2. The Data Importer may update or modify these security standards from time to time provided such updates and modifications will not result in a degradation of the overall security of the Services during the term of the Service Agreement.
1. Virtual access control
Technical and organizational measures to prevent data processing systems from being used by unauthorized persons include:
Technical and organizational measures to ensure that persons entitled to use a data processing system gain access only to such personal data in accordance with their access rights, and that personal data cannot be read, copied, modified or deleted without authorization, include:
3. Disclosure control
Technical and organizational measures to ensure that personal data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities personal data are disclosed, include:
Technical and organizational measures to monitor whether data have been entered, changed or removed (deleted), and by whom, from data processing systems, include:
5. Control of instructions
Technical and organizational measures to ensure that personal data are processed solely in accordance with the instructions of Data Exporter include:
6. Availability control
Technical and organizational measures to ensure that personal data are protected against accidental destruction or loss (physical/logical) include: