Data Processing Agreement

Updated Nov 27 2023

Note: Below is the Data Protection Agreement we use at HIM Solutions Inc. If you’d like an executable version please email sales@healthinspectionmonitor.com.

This Data Protection Agreement (“DPA”) is made and entered into as of the last signature date of the DPA as signed by both Parties by and between the customer (the “Data Controller”); and the service provider (“the Data Processor”).

Capitalized terms used but not defined in this DPA shall have the meanings set forth in the Agreement.

1. INTERPRETATION

The terms and expressions set out in this DPA shall have the following meanings:

“Agreement” means the agreement between the parties for purchase of the Data Processor’s Services.
“Data Controller”, “Data Processor” and “processing” shall have the meanings given to them in GDPR.
“ Data Protection Laws” means all applicable laws, regulations, and other legal or self-regulatory requirements in any jurisdiction relating to privacy, data protection, data security, breach notification, or the Processing of Personal Data, including without limitation, to the extent applicable, the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”), the United Kingdom Data Protection Act of 2018 (“UK Privacy Act”), the Swiss Federal Act on Data Protection (“FADP”), the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. and associated regulations (“CCPA”), and the following, when effective and together with any associated regulations: the California Privacy Rights Act (“CPRA”), the Colorado Privacy Act (“CPA”). For the avoidance of doubt, if service provider’s Processing activities involving Personal Data are not within the scope of a given Data Protection Law, such law is not applicable for purposes of this Addendum.
“Personal Data” means all data relating to individuals which is processed by the Data Processor on behalf of the Data Controller in accordance with this DPA.
“Process” and “Processing” mean any operation or set of operations performed on Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
“Services” shall mean the services made available to Data Controller by Data Processor, and shall include all services and other activities as set forth in an agreement, terms of use or service, or other work instruction agreed upon between the parties.
“Sub-processor” means any third party that Data Processor engages to Process Personal Data on behalf of Data Processor to provide the Services.

2. CATEGORIES OF PERSONAL DATA COVERED BY THE DPA

With respect to the Data Controller’s employees or contractors who are added as users to the Data Processor’s services: Contact details (including name, email address and work title designation) and the IP-address used to login to the services.
With respect to the Data Controller’s clients, any Personal Data that is under the control of Data Controller (by determining how it is collected, processed, transmitted, viewed, accessed or stored, including through third parties such as Data Processor).

3. PROCESSING AND USE OF PERSONAL DATA

Data Processor is to process Personal Data received from the Data Controller (a) in compliance with instructions provided by the Data Controller as set out in this DPA (b) exclusively for the purpose of providing the Services established in the Agreement or (c) as otherwise notified in writing in accordance with the notice provisions in the Agreement by the Data Controller to the Data Processor during the term of the Agreement.
The Data Processor agrees to comply with any reasonable measures required by the Data Controller to ensure that its obligations under this DPA are satisfactorily performed in accordance with all applicable legislation from time to time in force.
All Personal Data provided to the Data Processor by the Data Controller or obtained by the Data Processor in the course of its work with the Data Controller is confidential and may not be copied, disclosed or processed in any way without the express authority of the Data Controller.
The Data Processor shall at all times comply with the the applicable Data Protection Laws and shall not perform its obligations under this DPA, or the Agreement, in such way as to cause the Data Controller to breach any of its applicable obligations under the applicable Data Protection Laws.

4. SECURITY OF PERSONAL DATA

Data Processors agrees to implement and maintain an appropriate information security program with technical and organisational measures to protect the security of Personal Data to a level of security appropriate to the risk; in particular, against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.

5. SUB-PROCESSORS AND EMPLOYEES

Where the Data Processor processes Personal Data on behalf of the Data Controller it shall take reasonable steps to ensure the reliability of all employees, contractors and Sub-processors.
Data Processor will take reasonable measures to inform and train its employees about relevant privacy legislation and data security and ensure that persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality, and ensure that all employees and Sub-processors are informed of the confidential nature of the Personal Data and are aware of Data Processor’s duties under this DPA and their personal duties and obligations under applicable data protection legislation;
Data Processor shall not sub-contract its processing of Personal Data, or otherwise permit any third party to process Personal Data, without Data Controllers’ prior general authorization, which is hereby granted for the processing of Personal Data by (a) Sub- processors authorized to provide services under the Agreement in order to perform such services, and (b) Sub-contractors to the extent necessary, while providing ancillary administrative, infrastructure and other support services to Data Processor. Data Processor shall not disclose, transfer and/or grant access to Personal Data to a Sub-processor unless Data Processor: (i) executes an agreement with such Sub-processor that contains substantially similar data protection obligations imposed on Data Processor by this DPA, including implementing appropriate technical and organizational measures; and (ii) remains liable for subcontractor’s failure to fulfil its obligations with respect to the processing of Personal Data as if Data Processor had failed to fulfill such obligations.

6. AUDIT

Data Processor agrees that, at the Data Controller’s sole cost and expense, on reasonable, a minimum 30 days, prior notice and maximum once per calendar year, permit persons authorised by the Data Controller to inspect the Data Processor’s records for compliance with this Agreement. Data Controller acknowledges that Data Processor’s obligations under this clause may be satisfied in whole or part by the provision to Data Controller of appropriate information; records; and certifications and audit reports issued by reputable independent third parties provided that there have been no material changes to the controls used by Data Processor since the certification or audit report was issued

7. SECURITY INCIDENT

Data Processor shall notify the Data Controller if it receives a request from a data subject to have access to that person’s Personal Data or a complaint or request relating to the Data Controller’s obligations under the applicable Data Protection Laws.
Data Processor shall provide the Data Controller with full co-operation and assistance in relation to any complaint or request made, including by providing the Data Controller with full details of the complaint or request and complying with a data access request within the relevant timescale set out in the applicable Data Protection Laws and in accordance with the Data Controller’s instructions;
If the Data Processor:

A) becomes aware of any unauthorised or unlawful processing of any Personal Data or that any Personal Data is lost or destroyed or has become damaged, corrupted or unusable; or

B) becomes aware of any security breach, the Data Processor shall, at its own expense, immediately notify (and in any event within 48 hours) Data Controller and fully co-operate with Data Controller and assist Data Controller, in dealing with a security breach and in ensuring compliance with its obligations under the applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators as soon as reasonably practicable.

8. INTERNATIONAL DATA TRANSFER

To the extent any Personal Data is accessed by Data Processor, or transferred to Data Processor, the transfer(s) shall occur according to the requirements of the Data Protection Laws, including GDPR chapter V. The Parties agree to sign the EU Standard Contractual Clauses attached hereto as Exhibit 1.
With respect to transfers of Customer Personal Data originating from the UK and subject to the UK GDPR, the Parties agree to comply with the UK International Data Transfer Agreement (version A1.0) issued by the UK Information Commissioner and laid before Parliament in accordance with Section 119A of the Data Protection Act 2018 on 2 February 2022 (as revised under its provisions) which is incorporated herein by reference. The Parties agree that, for the purposes of the UK IDTA:
A) in Table 1, the Parties details and key contact information shall be deemed completed with the relevant information set out in Annex I to this DPA;
B) in Table 2, England and Wales is the governing law of the IDTA and the primary place for legal claims to be made by the Parties; the Exporter is a Controller and the importer is the Exporter’s Processor or Sub-Processor; the UK GDPR applies to the Importer’s Processing of the Transferred Data; reference to the “Linked Agreement” is to this DPA; the term of the IDTA is the period for which the Linked Agreement is in force; the Parties may end the IDTA (before the end of the Terms or when the Approved IDTA changes) in accordance with the termination provisions under the Agreement and this DPA; the Importer MAY transfer on the Transferred Data to another organization or person (who is a different legal entity) in accordance with Section 16.1 (Transferring on the Transferred Data);the first review date is the effective date of the Linked Agreement and the Parties must review the Security Requirements at least once each year]
C) in Table 3, the sections on details of Transferred Data shall be deemed completed with the relevant details as set out in Annex I to this DPA and this Transferred Data will update automatically if such details are updated in the Linked Agreement;
D) in Table 4, the sections on security shall be deemed completed with the security measures as described at Annex II to this DPA and these Security Requirements will update automatically if such security measures are updated in the Linked Agreement; and
E) Part 4 Mandatory Clauses of the IDTA shall be deemed completed with the following provision “Mandatory Clauses of the Approved IDTA, being the template IDTA A.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 5.4 of those Mandatory Clauses.”
Insofar as the transfer of Customer Personal Data is subject to the Swiss Federal Act on Data Protection, the following provisions apply: (i) the Federal Data Protection and Information Commissioner (FDPIC) will be the competent supervisory authority under Clause 13 of the C2P SCCs; (ii) the Parties agree to abide by the EU GDPR standard in relation to all Processing of Customer Personal Data that is governed by the Swiss Federal Act on Data Protection; (iii) the term ‘Member State’ in the C2P SCCs will not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the C2P SCCs; and (iv) references to the ‘GDPR’ in the C2P SCCs will be understood as references to the Swiss Federal Act on Data Protection insofar as the transfer of Customer Personal Data is subject to the Swiss Federal Act on Data Protection.

9. RETURN OR DISPOSAL

The Data Processor shall destroy or transfer all Personal Data to the Data Controller on the Data Controller’s request in the formats, at the times and in compliance with the requirements notified in writing by the Data Controller to the Data Processor. The Personal Data of the Data Controller shall be destroyed after a 7-day trailing period from the expiry or termination of the Contract.

10. INDEMNIFICATION

To the extent applicable by Data Protection Laws, the Data Processor shall indemnify and keep indemnified the Data Controller against direct damages, claims, and losses incurred by the Data Controller which arise directly from the Data Processor’s data processing activities under this DPA. To the extent permissible by Data Protection Laws , the limitations of liability agreed between the Parties in the Agreement apply to this DPA.

11. GENERAL

Conflict. If there is a conflict between the provisions of the Agreement and this DPA, the provisions of this DPA shall prevail.
Governing law and dispute resolution. This DPA and any action related thereto shall be governed by and construed in accordance with the laws as specified in the Agreement, without giving effect to any conflicts of laws principles. The parties consent to the personal jurisdiction of, and venue in, the courts specified in the Agreement.
Validity. This DPA shall be valid as long as the Agreement is in force.

EXHIBIT 1: STANDARD CONTRACTUAL CLAUSES

Controller to Processor — Section I

Clause 1: Purpose and scope

A. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) () for the transfer of data to a third country.

B. The Parties:

i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

C. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

D. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2: Effect and invariability of the Clauses

A. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

B. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3: Third-party beneficiaries

A. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii) Clause 9(a), (c), (d) and (e);

(iv) Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18(a) and (b).

B. Paragraph (1) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4: Interpretation

A. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

B. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

C. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5: Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6: Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7: Optional — Docking clause

A. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

B. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

C. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

Obligations of the Parties — Section II

Clause 8: Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘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 purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all 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.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer 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 (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union () (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

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

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9: Use of sub-processors

(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

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

Clause 10: Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11: Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12: Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13: Supervision

(a)The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

Local Laws and Obligations in Case of Access by Public Authorities — Section III

Clause 14: Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ();

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15: Obligations of the data importer in case of access by public authorities

15.1 Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

Final Provisions — Section IV

Clause 16: Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17: Governing Law

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of the Agreement.

Clause 18: Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of the country where the Data Processor is established.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

ANNEX I

A. LIST OF PARTIES

Data exporter(s):

Name:

Address:

Contact person’s name, position and contact details:

Activities relevant to the data transferred under these Clauses: The Services as provided by the Service Provider.

Signature and date: _________

Role (controller/processor): Controller

Data importer(s):

Name: HIM Solutions Inc.

Address:

3534 West 12th Avenue
Vancouver, BC V6R 2N4
Canada

Contact person’s name, position and contact details:
Ryan Stocker, President
rstocker@healthinspectionmonitor.com

Activities relevant to the data transferred under these Clauses: The Services as provided by the Service Provider.

Signature and date: _________

Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Data Controller's end-users that are authorized to use the Services.

Categories of personal data transferred

Name, username, email address, IP address, professional work title / designation.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

No sensitive data is transferred

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

Continuous basis

Nature of the processing

Transfer, copying, use, deletion, correction, adjustment

Purpose(s) of the data transfer and further processing

Personal data will be transferred from Data Controller to Data Processor for Data Processor to provide a SaaS service.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

The duration of the Agreement.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

The duration of the Agreement.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

The Data Controller’s main establishment.

ANNEX II : TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

EXPLANATORY NOTE:

The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

I. Confidentiality: Physical access checks

The Data Processor shall ensure that no unauthorised persons have access to the server or archive rooms. This shall transpire through:

Limited access lists

Datacenter and Cloud partners (where client data is stored):

Limited access lists
Secured doors
Biometrics
Locked cabinets containing hosted equipment
Video recordings
Escorted access only

II. Confidentiality: Entry controls

The Data Processor shall prevent the use of computer systems by unauthorised persons. This shall transpire through using multi authentication access controls.

III. Confidentiality: Access controls

The Data Processor warrants that those authorised to use a data processing system shall only be able to access the data that are subject to their access authorisation and that personal data shall not be able to be read, copied, altered or removed during processing or use or after storage without authorisation. This shall transpire through:

Process by which granting access to a user requires peer review
Reviewing access logs

IV. Confidentiality: Separation controls

The Data Processor warrants that data collected for different purposes can be processed separately. There is no need for physical separation; a logical separation of the data is sufficient. This shall transpire through:

Logical separation for all clients

V. Integrity: Disclosure checks

The Data Processor warrants that personal data cannot be read, copied, altered or removed without authorisation during the electronic transmission or transport or storage on data carriers, and that it shall be possible to verify and determine at which points personal data are to be transmitted by means of data transmission equipment. This shall transpire through:

Encryption of data when in transit.

VI. Integrity: Input controls

The Data Processor warrants that it shall be possible to subsequently verify and determine whether and by whom personal data has been entered, altered or removed in data processing systems. This shall transpire through:

Logging

VII. Availability and resilience: Availability checks

The Data Processor warrants that personal data shall be protected against accidental or intentional destruction or loss. This shall transpire through:

Logging
Least Privilege Access
Backups

VIII. Availability and resilience: recoverability

The Data Processor warrants the ability to rapidly restore the availability of the personal data and the access to the data in the event of a physical or technical incident through the following measures:

Disaster recovery and business continuity plans

IX. Evaluation: Data protection management

The Data Processor has implemented a process to regularly review and assess the effectiveness of the technical and organisational protection measures to warrant the security of the processing. This includes:

Random checks of measures

ANNEX III : LIST OF SUB-PROCESSORS

EXPLANATORY NOTE:

This Annex must be completed in case of the specific authorisation of sub-processors (Clause 9(a), Option 1).

The controller has authorised the use of the sub-processors listed here:

Sub-Processor	Purpose	Types of Data Stored	Relevant Services	Data Location
AWS, Inc.	Data / Cloud storage	Service Data	All Services	USA
Help Scout	Support	Customer data	All Services	USA
Microsoft	Behavior analysis	Customer data	All Services	USA
Google	Analytics	Customer data	All Services	USA
Clearbit	Analytics	IP addresses	All Services	USA
Facebook	Analytics	IP addresses	All Services	USA
SendGrid	Email	Customer Data	All Services	USA