Data Processing Addendum

Section I – General Disposition

Clause 1: Purpose and Scope

The controller and processor have agreed to this DPA in order to ensure compliance with the applicable laws.
This DPA applies to the processing of personal data as specified in ANNEX I.
Annexes I-III are an integral part of this DPA.
This DPA is without prejudice to obligations to which the controller is subject by virtue of the applicable laws.

Clause 2: Invariability of the Clauses

The Parties undertake not to modify this DPA, except for adding information to the Annexes or updating information in them.
This does not prevent the Parties from including the clauses laid down in this DPA in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the DPA or detract from the fundamental rights or freedoms of data subjects. The processor may amend this DPA from time to time by posting a revised version on its website. For material amendments of this DPA, the processor will inform the Client with 30 days before the effective date of such amendments. If the controller does not notify the processor of the non-acceptance of the amendments, until such amendments come into force, the controller will be deemed to have accepted the revised DPA. Controller’s notification of non-acceptance of the material amendments to this DPA will result in the termination of the Agreement latest at the renewal date.

Clause 3: Interpretation

The terms defined in this DPA shall have the same meaning as in the applicable laws or the Agreement.
This DPA shall be read and interpreted in the light of the provisions of the applicable laws.
This DPA shall not be interpreted in a way that runs counter to the rights and obligations provided for in the applicable laws or in a way that prejudices the fundamental rights or freedoms of the data subjects.

Clause 4: Hierarchy

Except for the conditions set in CLAUSE 2, 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 – Obligation of the Parties

Clause 5: Description of the Processing

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 I.

Clause 6: Obligation of the Parties

6.1 Instruction

The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or Member State law 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.
The controller is responsible for determining the applicable legal grounds and informing the data subjects concerned for the processing covered by the instructions. Where applicable, the controller is responsible for collecting any consent from the data subjects or the holder of parental responsibility over a child, so that the processor may lawfully process personal data on behalf of the controller.
The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe the applicable laws or the applicable Union or Member State data protection provisions. Where the controller is made aware of such infringement, the controller shall inform the processor about its decision to maintain, amend or withdraw the respective instructions. If the controller and the processor have a different interpretation whether the instructions comply with the applicable laws, the parties shall promptly discuss and find an alternative solution that complies with the applicable laws.

6.2 Purpose limitation

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in ANNEX I, unless it receives further instructions from the controller.

6.3 Duration of the processing of personal data

Processing by the processor shall only take place for the duration specified in ANNEX I.

6.4 Security of processing

The processor shall at least implement the technical and organizational measures specified in ANNEX II 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, unauthorized 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.
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 agreement. The processor shall ensure that persons authorized to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

6.5 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.

6.6 Documentation and compliance

The Parties shall be able to demonstrate compliance with this DPA.
The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with this DPA.
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. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by this DPA, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor.
The controller may choose to conduct the audit by itself or mandate an independent auditor, in which case the controller will cover all cost of the audit done by the independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.
The Parties shall make the information referred to in this clause 6.6, including the results of any audits, available to the competent supervisory authority/ies on request.

6.7 Use of sub-processors

GENERAL WRITTEN AUTHORISATION: The processor has the controller’s general authorization for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object. The list of sub-processors authorized by the controller at the date of concluding this DPA can be found in ANNEX III.
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, at least the same data protection obligations as the ones imposed on the data 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 laws.
At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.
The processor shall remain fully 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 fulfill its contractual obligations.
The processor shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

6.8 International transfer

Any transfer of data to a third country or an international organization by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with the requirements of the applicable laws.
The processor is certified under the Data Privacy Framework (DPF) Program, https://www.dataprivacyframework.gov/, and undergoes to keep its certification for having a reliable mechanisms for personal data transfers to the United States from the European Union, United Kingdom, and Switzerland.
The controller agrees that where the processor engages a sub-processor in accordance with clause 6.7 for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of the applicable laws, the processor and the sub-processor can ensure compliance with the applicable laws by using standard contractual clauses adopted by the competent authorities, provided the conditions for the use of those standard contractual clauses are met.

Clause 7: Assistance of the Controller

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 authorized to do so by the controller.
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.
In addition to the processor’s obligation to assist the controller pursuant to CLAUSE 7(b), 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:
1. 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;
2. 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;
3. the obligations for personal data security foreseen in the applicable laws.
The Parties shall set out in ANNEX II the appropriate technical and organizational measures by which the processor is required to assist the controller in the application of this CLAUSE 7 as well as the scope and the extent of the assistance required.

Clause 8: 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 laws, where applicable, taking into account the nature of processing and the information available to the processor

8.1 Data breach concerning data processed by the controller
In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:

in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant (unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);
in obtaining the following information which, pursuant to the applicable laws, shall be stated in the controller’s notification, and must at least include:
1. 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;
2. the likely consequences of the personal data breach;
3. 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.
in complying, pursuant to the applicable laws, with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.

8.2 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 has 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.

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.

Section III – Final Provision

Clause 9: Non-Compliance with the DPA and Termination

Without prejudice to any provisions of the applicable laws, 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 agreement is terminated. The processor shall promptly inform the controller in case it is unable to comply with this DPA, for whatever reason.
The controller shall be entitled to terminate the agreement insofar as it concerns processing of personal data in accordance with this DPA if:
1. 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;
2. the processor is in substantial or persistent breach of this DPA or its obligations under the applicable laws;
3. 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 laws.
Where the controller insists on compliance with the instructions, after having informed the controller that its instructions infringe applicable legal requirements and the controller and the processor haven’t identified a solution compliant with the applicable laws, as the processor is arguing in writing, in accordance with clause 6.1 (c), the processor shall be entitled to terminate the agreement insofar as it concerns processing of personal data under this DPA.
Following termination of the agreement, the processor shall, at the choice of the controller, delete 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 existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with this DPA.

Clause 10: Governing Law and Choice of Jurisdiction

The Parties agree to submit themselves to the jurisdiction of and cooperate with the competent supervisory authority aimed at ensuring compliance with this DPA. The supervisory authority responsible with the compliance of the applicable laws is declared in ANNEX I.
The laws of the country or territory provided for in the Agreement govern this DPA. The parties agree that any dispute or claim arising with the terms or performance of this DPA, including disputes concerning its existence, validity or termination or the consequences of its annulment, shall be within the jurisdiction of the courts specified in the Agreement.

Annex I
Processing Description

A. LIST OF PARTIES

Controller: The Client as mentioned in the Agreement

Processor: Engage Technologies Group, Inc, 3540 E Longwing Lane, Suite 300, Meridian, Idaho, 83646, United States

The Parties designate the following contact point for matters relating to the processing of personal data under this DPA:

For controller, the contact details used for the user account
For processor, the contact details of the Data Protection Officer: dpo@engagetg.com

B. DESCRIPTION OF PROCESSING

Depending on the subscription service, the Parties agree that the processing of personal data shall be carried out in accordance with the following applicable limitations and for the following purposes:

Details of data processing when Client acquires mobile guided journeys, and subscribed to any of the following services: Non-Surgical (Engage or PPS), Surgical (Engage or PPS), Bundle (Engage or PPS), Start-Up Map (Phase 1 and/or Phase 2 and/or Phase 3).

Purpose of the processing:

Sending text messages to the Recipients with links for the journey(ies)
Tracking the Recipients behavior during the journey(ies)
Collecting data from Recipients through surveys
Providing statistical reports regarding Recipients’ platform usage and how Recipients benefited from the journey(ies)

Categories of data subjects:

Recipients (i.e. controller’s recipients and other individuals about whom the controller has given information or has otherwise interacted via the Subscription Service)

Categories of personal data transferred:

Identification data (internal Engage ID)
Contact information (first name, last name)
Contact data (phone number, email)
Medical information (appointment type, appointment date/time)
Journey information (journey, event type, event date, event id, episode name, language, video id, video name, video length, video time watched, video time watched percentage, call to action)

Sensitive data transferred:

Sensitive data is processed as part of the Service only through PMS (Practice Management System) integration. If the controller chooses to use this method of integration, appointment type and appointment date/time are processed by the processor.

Duration of processing:

During the execution of the Agreement with the controller.

Details of data processing if you acquired analytical calculators and KPI reports, sales training, community – ongoing business mentoring and subscribed to any of the following services: PPS Non-Surgical, PPS Surgical, PPS Bundle, Practice Optimization, Start-Up Map (Phase 1 and/or Phase 2 and/or Phase 3).

1. For analytical calculators and KPI reports:

Purpose of the processing:

Monitoring controller's business
Comparing key revenue, conversions & expenses KPIs over time, and show progress compared to a historical baseline
Comparing actual revenue and productivity data against forecasted projections

Categories of data subjects:

Users (i.e. employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for the controller’s benefit and have unique user identifications and passwords for the Subscription Service).

Categories of personal data transferred:

Identification data (first name, last name, role)
Activity data (hours worked, sellable hours, hours sold, total consults, total procedures, total consults cancelled, revenue by user, total revenue by user compared to hours worked, productive revenue per hour for hours sold by user)

Duration of processing:

During the execution of the Agreement with the controller.

2, For sales training

Purpose of the processing:

Creation of user profiles and ensuring professional development.

Categories of data subjects:

Users (i.e. employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for the controller's benefit and have unique user identifications and passwords for the Subscription Service).

Categories of personal data transferred:

Identification data (first name, last name, role, image)
Contact data (email)
Logs (permissions, access logs)
Participation data (certificates and ratings obtained after attending professional development courses)

Duration of processing:

During the execution of the Agreement with the controller.

3. For community – ongoing business mentoring

Purpose of the processing:

Subscribe to office hours, webinars, podcasts and more important events about the Subscription Service
Connect with other users to network
Community calls

Categories of data subjects:

Users (i.e. employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for the controller's benefit and have unique user identifications and passwords for the Subscription Service).

Categories of personal data transferred:

Identification data (first name, last name, role, image and voice (recorded if the case))
Contact data (email)

Duration of processing:

During the execution of the Agreement with the controller.

Nature of the processing:

The processing is based on the commercial relationship according to the Agreement concluded between the controller and the processor and refers to collection, recording, organization, structuring, storage, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, erasure or destruction of personal data.

Transfers to sub-processors:

The processor will use the sub-processors declared in Annex III

C. COMPETENT SUPERVISORY AUTHORITY

The competent supervisory authority shall be determined in accordance with the applicable data protection legislation where the data subjects are located.

Annex I I
Technical and organizational measures including technical and organizational measures to ensure the Data security

Description of the technical and organizational security measures implemented by the processor (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, as well as the risks for the rights and freedoms of natural persons:

Measures of pseudonymization and encryption of personal data
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
Processes for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures in order to ensure the security of the processing
Measures for user identification and authorization
Measures for the protection of data during transmission
Measures for the protection of data during storage
Measures for ensuring the physical security of locations at which personal data are processed
Measures for ensuring event logging
Measures for ensuring system configuration, including the default configuration
Measures for internal IT and IT security governance and management
Measures for certification/assurance of processes and products
Measures for ensuring data minimization
Measures for ensuring data quality
Measures for ensuring limited data retention
Measures for ensuring accountability
Measures for allowing data portability and ensuring erasure

Annex III
Authorized Sub-Processors

The following entities, to the extent that they are involved in the processing of personal data, are authorized to carry out processing activities as sub-processors in relation to the personal data processing that is subject to this DPA: