Data Processing Agreement
Table of Contents
Sections 1 through 3: The Setup
Section 4: Definitions
Section 5: Authorities
Section 6: Processing of Company Personal Data
Section 7: fitDEGREE Personnel
Section 8: Security
Section 9: Sub-processing
Section 10: Data Subject Rights
Section 11: Personal Data Breach
Section 12: Data Protection Impact Assessment and Prior Consultation
Section 13: Deletion or Return of the Client's Personal Data
Section 14: Audit Rights
Section 15: Restricted Transfers
Section 16: General Terms
Annex 1: Details of Processing of the Client's Personal Data
Annex 2: Standard Contractual Clauses
Annex 3: Technical and Organizational Security Measures
This Data Processing Agreement (“DPA”) forms part of the Master Service Agreement (“Agreement”) between fitDEGREE, LLC, (“fitDEGREE” or “Processor”) and the Client (“Client”). This DPA is effective as of May 25, 2018 (the “Effective Date”). Collectively, fitDEGREE and the Client shall be referred to as “the Parties.”
The Parties agree as follows:
1. Except as modified below, the terms of the Agreement shall remain in full force and effect.
2. In consideration of the mutual obligations set out herein, the Parties hereby agree that the terms and conditions set out below shall be added and incorporated as part of the Agreement. Except where the context requires otherwise, references in this DPA to the Agreement are to the Agreement as amended by, and including, this DPA.
3. The terms used in this DPA shall have the meanings set forth in Section 4. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. To the extent that a term is not defined in this DPA or the Agreement, the definition of the terms in the GDPR (as defined below) shall govern.
4.1. “Applicable Laws” means (a) European Union or Member State laws with respect to any Personal Data; and (b) any other applicable law with respect to any Personal Data;
4.2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more that 50% of the voting interests of the subject entity.
4.3. “Contracted Processor” means fitDEGREE or a Subprocessor;
4.4. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
4.5. “EEA” means the European Economic Area;
4.6. “EU” means the European Union;
4.7. “EU Data Protection Laws” means the GDPR, any laws transposing the GDPR into domestic legislation of each Member State and any other EU laws related to data protection;
4.8. “GDPR” means the EU General Data Protection Regulation (Regulation (EU (2016/679));
4.9. “Personal Data” means any Personal Data as defined by the GDPR Processed by fitDEGREE on behalf of the Client pursuant to or in connection with the Agreement;
4.10. “Restricted Transfer” means:
4.10.1. a transfer of Personal Data from the Client to a Contracted Processor; or
4.10.2 an onward transfer of Personal Data from a Contracted Processor to a Contracted Sub-Processor, or between two establishments of a Contracted Processor;
4.11. “Services” means the services and other activities to be supplied to or carried out by fitDEGREE or any Subprocessor on behalf of the Client pursuant to the Agreement;
4.12. “Standard Contractual Clauses” means the contractual clauses set out in Annex 2, amended as indicated in that Annex and under section 15;
4.13. “Subprocessor” means any person (including any third party and any its affiliates, but excluding an employee of fitDEGREE or any of its sub-contractors) appointed by or on behalf of fitDEGREE or any of its affiliates to Process Personal Data on behalf of the Client in connection with the Agreement; and
5. Authority. fitDEGREE warrants and represents that, before any Subprocessor Processes any Client Personal Data on behalf of the Client, fitDEGREE's entry into this DPA as agent for and on behalf of that Subprocessor will have been duly and effectively authorized (or subsequently ratified) by that Subprocessor.
6. Processing of Company Personal Data.
6.1. fitDEGREE and any affiliates shall:
6.1.1. comply with all applicable Data Protection Laws in the Processing of Personal Data; and
6.1.2. not Process Personal Data other than on the Client’s documented instructions unless Processing is required by Applicable Laws to which the relevant Processor is subject, in which case fitDEGREE or any of its affiliates shall to the extent permitted by Applicable Laws inform the relevant Client of that legal requirement before the relevant Processing of that Personal Data.
6.2 The Client shall instruct and authorize fitDEGREE and any of its affiliates to:
6.2.1. Process Personal Data; and
6.2.2. in particular, transfer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Agreement; and
6.2.3. warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in section 6.2.
6.3 Annex 1 to this DPA sets out certain information regarding the Contracted Processors’ Processing of the Personal Data as required by Article 28(3) of the GDPR (and any equivalent requirements of other Data Protection Laws). fitDEGREE may make reasonable amendments to Annex 1 by written notice to the Client from time to time as fitDEGREE reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 6.3) confers any right or imposes any obligation on any party to this DPA.
7. fitDEGREE Personnel. fitDEGREE and any of its affiliates shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
8.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, fitDEGREE and any of its affiliates shall, in relation to the Personal Data, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
8.2. The security measures implemented shall be described in Annex 3.
8.3. In assessing the appropriate level of security, fitDEGREE and any of its affiliates shall take into account the risks that are presented by Processing, in particular from a Personal Data Breach.
9.1. The Client authorizes fitDEGREE and any of its affiliates to appoint (and permit each Subprocessor appointed in accordance with this section 9 to appoint) Subprocessors in accordance with this section 9 and any restrictions in the Agreement.
9.2. fitDEGREE and any of its affiliates may continue to use those Subprocessors already engaged by fitDEGREE and any of its affiliates as of the date of this DPA, subject to fitDEGREE and any of its affiliates in each case as soon as practicable meeting the obligations set out in this section 9.
9.3. fitDEGREE shall give the Client prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within thirty (30) calendar days of receipt of that notice, the Client notifies fitDEGREE in writing of any objections (on reasonable grounds) to the proposed appointment, neither fitDEGREE and any of its affiliates shall appoint or disclose any Personal Data to that proposed Subprocessor until reasonable steps have been taken to address the objections raised by the Client and the Client has been provided with a reasonable written explanation of the steps taken.
9.3.1 If the Client objects to the use of any Subprocessor, fitDEGREE shall have the right to terminate the Agreement in accordance with the terms of the Agreement.
9.4. With respect to each Subprocessor, fitDEGREE and any of its affiliates shall:
9.4.1. before the Subprocessor first Processes Personal Data, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by the Agreement;
9.4.2. ensure that the arrangement between, on the one hand, (a) fitDEGREE or any of its affiliates, or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Personal Data as those set out in this DPA and meet the requirements of Article 28(3) of the GDPR;
9.4.3. if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses (Annex 2) are at all relevant times incorporated into the agreement between on the one hand fitDEGREE or the relevant intermediate Subprocessor; and on the other hand the Subprocessor; or, before the Subprocessor first Processes Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant party; and provide to the Client for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this DPA) as the Client may request from time to time.
9.5. fitDEGREE and any of its affiliates shall ensure that each Subprocessor performs the obligations under this DPA, as they apply to Processing of Personal Data carried out by that Subprocessor, as if it were party to this DPA in place of fitDEGREE.
10. Data Subject Rights.
10.1. Taking into account the nature of the Processing, fitDEGREE and any of its affiliates shall assist the Client by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Client’s obligations, as reasonably understood by the Client, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
10.2. fitDEGREE [and any of its affiliates] shall:
10.2.1. promptly notify the Client if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Personal Data; and
10.2.2. ensure that the Contracted Processor does not respond to that request except on the documented instructions of the Client or as required by Applicable Laws to which the Contracted Processor is subject, in which case fitDEGREE shall to the extent permitted by Applicable Laws inform the Client of that legal requirement before the Contracted Processor responds to the request.
11. Personal Data Breach.
11.1. fitDEGREE shall notify the Client without undue delay upon fitDEGREE or any Subprocessor becoming aware of a Personal Data Breach affecting Personal Data, providing the Client with sufficient information to allow the Client to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
11.2. fitDEGREE shall cooperate with the Client and take such reasonable commercial steps as are directed by the Client to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
11.3. The Client shall notify fitDEGREE without undue delay, but no more than three (3) days after the Client becoming aware of a Personal Data Breach affecting Personal Data related to the Agreement, providing fitDEGREE with sufficient information to allow fitDEGREE to meet any obligations under the Data Protection Laws.
11.4. The Client shall cooperate with fitDEGREE and take such reasonable commercial steps as are directed by fitDEGREE to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
12. Data Protection Impact Assessment and Prior Consultation. fitDEGREE and any of its affiliates shall provide reasonable assistance to the Client with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which the Client reasonably considers to be required of the Client by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors. The Client shall pay for any and all costs associated with fitDEGREE’s assistance with the tasks outlined above.
13. Deletion or return of the Client’s Personal Data.
13.1. Subject to any restrictions under any Applicable Laws, fitDEGREE and any of its affiliates shall promptly and in any event within ninety (90) business days after the date of cessation of any Services involving the Processing of Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of the relevant Personal Data. To the extent that any Personal Data is anonymized or de-identified, fitDEGREE shall maintain that anonymized and de-identified data.
13.2. Subject to any restrictions under any Applicable Laws, the Client may in its absolute discretion by written notice to fitDEGREE within sixty (60) business days of the Cessation Date require fitDEGREE and any of its affiliates to (a) return a complete copy of all Personal Data to the Client by secure file transfer in a reasonably operable format; and (b) delete and procure the deletion of all other copies of Personal Data Processed by any Contracted Processor. fitDEGREE and any of its affiliates shall comply with any such written request within ninety (90) business days of the Cessation Date.
13.3. Each Contracted Processor may retain Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that fitDEGREE and any of its affiliates shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for and in conformity with the purpose(s) specified in the Applicable Laws.
13.4. fitDEGREE shall provide written certification to the Client that fitDEGREE and any of its affiliates has fully complied with this section 13 within one-hundred twenty (120) business days of the Cessation Date.
14. Audit rights.
14.1. fitDEGREE and any of its affiliates shall make available to the Client on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Client or an auditor mandated by the Client in relation to the Processing of the Personal Data by the Contracted Processors.
14.2. Information and audit rights of the Client only arise under section 14.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
14.3. The Client shall give fitDEGREE and any of its affiliates reasonable notice, but no less than thirty (30) calendar days before the start of any audit or inspection to be conducted under section 14.1 and shall make (and ensure that each of its mandated auditors makes) commercially reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Processors' equipment, personnel and business during the course of such an audit or inspection.
14.4. The Client shall bear the costs incurred by the Processor for any audits or inspections under this section 14.
15. Restricted Transfers. The Client (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses attached as Annex 2 with respect to any Restricted Transfer from Client to a Contracted Processor.
15.1. The Standard Contractual Clauses shall come into effect under section 15 on the later of:
15.1.1. the data exporter becoming a party to them;
15.1.2. the data importer becoming a party to them; and
15.1.3. commencement of the relevant Restricted Transfer.
16. General Terms.
16.1. Governing law and jurisdiction. The parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity.
16.2. Order of precedence. Nothing in this DPA reduces the Client or fitDEGREE and any of its affiliates’ obligations under the Agreement in relation to the protection of Personal Data or permits the Client or fitDEGREE and any of its affiliates to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
16.2.1. Subject to section 16.2, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the Parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the Parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.
16.3. Changes in Data Protection Laws.
16.3.1. The Client may:
18.104.22.168. propose any variations to this DPA which the Client reasonably considers to be necessary to address the requirements of any Data Protection Law by written notice to fitDEGREE.
16.3.2. fitDEGREE may:
22.214.171.124. propose any variations to this DPA which fitDEGREE reasonably considers to be necessary to address the requirements of any Data Protection Law by written notice to the Client..
16.3.3. If the Client or fitDEGREE gives notice under sections 16.3.1 and 16.3.2:
126.96.36.199. the Parties shall reasonably discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in the Party's notice as soon as is reasonably practicable.
16.3.4. Neither the Client nor fitDEGREE shall require the consent or approval of any affiliate to amend this DPA pursuant to this section 16.3 or otherwise.
16.4.1. Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
16.5.1. The Client agrees to indemnify, keep indemnified and defend and hold harmless, solely at its own expense, fitDEGREE against all costs, claims, damages, expenses, penalties, or fines incurred by fitDEGREE or for which fitDEGREE may become liable due to any failure by the Client or the failure of any of its employees, subcontractors or agents to comply with any of its obligations under this DPA or applicable data protection laws.
16.5.2. fitDEGREE shall not be liable for any action taken at the instruction of the Client. To the extent that fitDEGREE takes any action related to data processing, and the Client is informed of such action, it will be deemed that the Client has consented, instructed, and has otherwise approved that action.
Details of Processing of the Client's Personal Data
This Annex 1 includes certain details of the Processing of the Client’s Personal Data as required by Article 28(3) GDPR.
I. Subject matter and duration of the Processing of the Client’s Personal Data
The subject matter and duration of the Processing of the Company Personal Data are set out in the Master Service Agreement and the Data Protection Agreement.
II. The nature and purpose of the Processing of the Client’s Personal Data
fitDEGREE’s purpose of processing the Client’s Personal Data has two major roles in the software’s use. The first is to provide each User their own unique account in order to allow them to register for registerables and see history of attended registerables. The second is to provide the Controller (fitness center owner) with a digital copy of their customers’ data and have a record of their transaction history, whether that be financial transactions and/ or interactional transactions.
III. The types of the Client’s Personal Data to be Processed
The following data may be collected from the customer and end-users:
Last name (optional)
Affiliation to Business (member, employee, etc.)
Profile Picture (optional)
Check-Ins (location and number of times)
Registerables (i.e., classes, private sessions, events, etc.) attended
VI. The categories of Data Subject to whom the Client’s Personal Data relates
Employees of Prospective Customers
Employees of Customers
Clients (End-Users) of Customers
V. Data Transfers to Third-Countries
a. Data subjects. The personal data transferred concern the following categories of data subjects:
Employees of Prospective Customers
Employees of Customers
Clients (End-Users) of Customers
b. Categories of data. The personal data transferred concern the following categories of data:
The following data that may be collected from the customer and end-users is transferred to the United States:
Last name (optional)
Affiliation to Business (member, employee, etc.)
Profile Picture (optional)
Check-Ins (location and number of times)
Registerables (i.e., classes, private sessions, events, etc.) attended
c. Special categories of data. The personal data transferred concern the following special categories of data:
Gender (if collected)
Ethnicity (if collected
d. Processing operations. The personal data transferred will be subject to the following basic processing activities:
See Section II above.
VI. The obligations and rights of Client and Company Affiliates
The obligations and rights of the Client and Company Affiliates are set out in the Master Service Agreement and the Data Processing Agreement.
Standard Contractual Clauses
These Standard Contractual Clauses (“SCCs”) form part of the Data Protection Agreement (“DPA”) between fitDEGREE, LLC, and the Client (“Client” or “Data Exporter”). Collectively, fitDEGREE and the Client shall be referred to as “the Parties.”
These SCCs are entered into for the purposes of Article 46(3)(a) of the European Union’s General Data Protection Regulation (Regulation 2016/679) (“GDPR”) for the transfer of Personal Data to processors established in third countries which do not ensure an adequate level of data protection.
The Parties HAVE AGREED on the following SCCs 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 Annex 1 to the DPA. The DPA entered into between the Parties contemplates that Services provided by the Data Importer will involve the transfer of Personal Data to the Data Importer. The Data Importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with the GDPR and applicable data protection law, the Client agrees to the provision of such Services, including the processing of Personal Data incidental thereto, subject to the Data Importer’s execution of, and compliance with, the terms of these Clauses.
01. Clause 1. Definitions. The terms used in these SCCs shall have the meanings set forth in the DPA and these SCCs. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Master Service Agreement (“MSA”) and the DPA. To the extent that a term is not defined in the MSA, DPA or these SCCs, the definition of the terms in the General Data Protection Regulation shall be in force.
a. For the purposes of the SCCs:
i. 'Personal Data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in the GDPR;
ii. 'the Data Exporter' means the controller who transfers the Personal Data;
iii. '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 SCCs and who is not subject to a third country's system ensuring adequate protection within the meaning of the GDPR;
iv. 'the sub-processor' means any processor engaged by the Data Importer or by any other sub-processor of the Data Importer who agrees to receive from the Data Importer or from any other sub-processor 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 SCCs and the terms of the written subcontract;
v. '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;
vi. 'technical and organizational security measures' means those measures aimed at protecting Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
02. Clause 2. Details of the transfer.
a. The details of the transfer and in particular the special categories of Personal Data where applicable are specified in Annex 1 to the DPA which forms an integral part of these SCCs.
03. Clause 3. Third-Party Beneficiary.
a. The data subject can enforce against the Data Exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, and Clauses 9 to 12 as third-party beneficiary.
b. The data subject can enforce against the Data Importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, and Clauses 9 to 12, in cases where the Data Exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the Data Exporter, in which case the data subject can enforce them against such entity.
c. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, and Clauses 9 to 12, in cases where both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the Data Exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
d. The Parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
04. 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 Member 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 SCCs;
c. that the Data Importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Annex 3 to the DPA;
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 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 the GDPR;
g. to forward any notification received from the Data Importer or any sub-processor pursuant to Clause 5(b) and Clause 8(c) 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 SCCs, with redactions as necessary for information related to compliance with security measures, 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 SCCs, 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 sub-processor 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.
05. 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 SCCs; 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 MSA and DPA;
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 MSA and DPA 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 SCCs, 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 MSA and DPA;
c. that it has implemented the technical and organizational security measures specified in Annex 3 to the DPA 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 SCCs 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, subject to the restrictions in the DPA;
g. to make available to the data subject upon request a copy of the SCCs, or any existing contract for sub-processing, unless the SCCs or contract contain commercial information, in which case it may remove such commercial information, with the exception of Annex 3 of the DPA 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 sub-processor will be carried out in accordance with Clause 11; and
j. to send promptly a copy of any sub-processor agreement it concludes under the SCCs to the Data Exporter.
06. Clause 6. Liability.
a. The Parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the Data Exporter for the damage suffered.
b. If a data subject is not able to bring a claim for compensation in accordance with paragraph (a) against the Data Exporter, arising out of a breach by the Data Importer or its sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the Data Exporter has factually disappeared or ceased to exist in law or has become insolvent, the Data Importer agrees that the data subject may issue a claim against the Data Importer as if it were the Data Exporter, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
c. The Data Importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
d. If a data subject is not able to bring a claim against the Data Exporter or the Data Importer referred to in paragraphs (a) and (b), arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the SCCs as if it were the Data Exporter or the Data Importer, unless any successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
07. Clause 7. Mediation and Jurisdiction.
a. The Data Importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the SCCs, the Data Importer will accept the decision of the data subject:
i. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
ii. to refer the dispute to the courts in the Member State in which the Data Exporter is established.
b. The Parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
08: Clause 8. Cooperation with Supervisory Authorities.
a. The Data Exporter agrees to deposit a copy of these SCCs with the Supervisory Authority if it so requests or if such deposit is required under the applicable data protection law.
b. The Parties agree that the Supervisory Authority has the right to conduct an audit of the Data Importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the Data Exporter under the applicable data protection law.
c. The Data Importer shall promptly inform the Data Exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the Data Importer, or any sub-processor, pursuant to paragraph b. In such a case the Data Exporter shall be entitled to take the measures foreseen in Clause 5 (b).
09. Clause 9. Governing Law.
a. The SCCs shall be governed by the law of the Member State in which the Data Exporter is established.
010. Clause 10. Variation of these SCCs.
a. The Parties undertake not to vary or modify the SCCs. This does not preclude the Parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
011. Clause 11. Sub-processing.
a. The Data Importer shall not subcontract any of its processing operations performed on behalf of the Data Exporter under the SCCs without the prior written consent of the Data Exporter. Where the Data Importer subcontracts its obligations under the SCCs, with the consent of the Data Exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the Data Importer under the SCCs. Where the sub-processor fails to fulfil its data protection obligations under such written agreement, the Data Importer shall remain fully liable to the Data Exporter for the performance of the sub-processor's obligations under such agreement.
b. The prior written contract between the Data Importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph a of Clause 6 against the Data Exporter or the Data Importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the SCCs.
c. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph a shall be governed by the law of the Member State in which the Data Exporter is established.
d. The Data Exporter shall keep a list of sub-processing agreements concluded under the SCCs and notified by the Data Importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the Data Exporter's data protection Supervisory Authority.
012. Clause 12. Obligation after the termination of Personal Data processing Services.
a. The Parties agree that on the termination of the provision of data processing Services, the Data Importer and the sub-processor shall, at the choice of the Data Exporter, return all the Personal Data transferred and the copies thereof to the Data Exporter or shall destroy all the Personal Data and certify to the Data Exporter that it has done so, unless legislation imposed upon the Data Importer prevents it from returning or destroying all or part of the Personal Data transferred. In that case, the Data Importer warrants that it will guarantee the confidentiality of the Personal Data transferred and will not actively process the Personal Data transferred anymore.
b. The Data Importer and the sub-processor warrant that upon request of the Data Exporter and/or of the Supervisory Authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph a.
Technical and Organizational Security Measures
Description of the technical and organizational security measures implemented by the Data Importer in accordance with the Data Processing Agreement and Annex 2, the Standard Contractual Clauses:
When an individual uses fitDEGREE, they are accessing it through an app downloaded via the iOS App Store/ the Google Play Store or through a website. fitDEGREE does not share/ provide data with third party companies unless it provides value in using the fitDEGREE platform.
For Data When data is retrieved or sent through our system, it is sent through HTTPS protocol, making sure that all data in and out is encrypted. The data is transfer to our API on a server hosted by AWS (Amazon Web Servers).
Once the data is retrieved by our API, fitDEGREEhas a token based firewall to ensures that the user accessing the information has adequate permissions. If a user sends an invalid request to the server, requesting another user’s data, that invalid request would be stopped at the firewall and returned a ‘Permission Denied’ error.
From there, the data is securely stored and retrieved from a database also hosted on AWS, through their RDS (Relational data-basing services). Access to the AWS database storing fitDEGREE data is limited to only to company programers requiring such access and requires a unique username and password, that is securely stored.
The only exception to this is images, which are stored in AWS S3 storage.
For additional information regarding AWS compliance wtih the GDPR, please visit: https://aws.amazon.com/compliance/gdpr-center/
For Payment Information fitDEGREE does not manage any PCI Compliant payment information internally, and is fully PCI Level 1 compliant. We use a third party vendor, “SplashPayments”. When a credit card number and expiration date is entered into fitDEGREE website or app, it is entered through an iFrame, which embeds the SplashPayments website directly into the fitDEGREE interface. SplashPayments transfer payment information through the iFrame over HTTPS to SplashPayments servers. fitDEGREE is provided with a token representing that information in exchange, which fitDEGREE refers to for future purchases. At no time does fitDEGREE store, maintain, or access any payment information.
For additional information regarding PCI Level 1 compliance, please visit:https://www.vantiv.com/secure-payment-systems/understand-pci-compliance-levels
For Text Messaging Sometimes, fitDEGREE may text our end-users to verify the phone number provided by the end-user. fitDEGREE uses a third-party service, Twilio, to send these text messages. Twilio is provided only with the phone number provided and the text message content. For additional regarding Twilio’s GDPR Compliance, please visit: https://www.twilio.com/gdpr.
For Customer Relationship Management In order to manage prospects and customers efficiently, fitDEGREE uses a third-party provider for CRM software called Infusionsoft. Infusionsoft manages contact information, creates automated email campaigns, and maintains billing information.
For additional information regarding Infusionsoft’s GDPR Compliance, please visit: https://www.infusionsoft.com/legal/data-protection-faq