DATA PROCESSING AGREEMENT (DPA)
Effective Date: February 7th 2024
Notice Version: 1.0
Data Controller Contact Information
Synthium Health, Inc
2550 Sandy Plains Rd, Suite 225-356
Marietta, GA 30066
Policy prepared by: Synthium Health, Inc
This Data Processing Agreement (DPA) forms part of the Synthium Health, Inc. Principle Terms and Conditions. By agreeing to our principle terms and conditions you are also agreeing to this DPA.
In consideration of the mutual obligations set out in this DPA the parties agree that the terms and conditions set out below will be added as an addendum to the Synthium Health, Inc. principle terms and conditions shown at this link: https://flipguardian.com/terms/ . Except as modified below, the principal terms and conditions will remain in full force and effect.
For the purposes of this DPA Synthium Health, Inc. is the Data Processor and our customer is the Data Controller.
1. Subject Matter of This Data Processing Agreement
1.1. This data processing agreement applies to the processing of personal data subject to the EU Data Protection Law.
1.2. The term EU Data Protection Law will mean 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 free movement of such data.
1.3. Terms used in this data processing agreement that have meanings ascribed to them in the EU Data Protection Law, including but not limited to processing, Personal Data, Data Controller, and Processor will carry the meanings set forth under the EU Data Protection Law.
1.4. The data processor will be processing personal data subject to the EU Data Protection Law on behalf of the data controller. An overview of the categories of personal data, the categories of data subjects, and the nature and purposes for which the personal data are being processed is provided in Annex 1.
2. The Data Controller and the Data Processor
2.1. The data controller will determine the scope, purposes, and manner by which the personal data may be accessed or processed by the data processor. The data processor will process the personal data only as set forth in data controller’s written instructions and no personal data will be processed unless explicitly instructed by the controller.
2.2. The data processor will only process the personal data on documented instructions of the data controller to the extent that this is required for the provision of the services. Should the data processor reasonably believe that a specific processing activity beyond the scope of the data controller’s instructions is required to comply with a legal obligation to which the data processor is subject, the data processor will inform the data controller of that legal obligation and seek explicit authorization from the data controller before undertaking such processing. The data processor will never process personal data in a manner inconsistent with the data controller’s documented instructions. The data processor will immediately notify the data controller if, in its opinion, any instruction infringes this regulation or other Union or member state's data protection provisions. Such notification will not constitute a general obligation on the part of the data processor to monitor or interpret the laws applicable to the data controller, and such notification will not constitute legal advice to the data controller.
2.3. The data controller warrants that it has all necessary rights to provide personal data to the data processor for processing to be performed in relation to the services, and that one or more lawful bases set forth in the EU Data Protection Law support the lawfulness of the processing. To the extent required by the EU Data Protection Law the data controller is responsible for ensuring that all necessary privacy notices are provided to data subjects, and unless another legal basis set forth in the EU Data Protection Law supports the lawfulness of the processing, any necessary data subject consents to the processing are obtained, and for ensuring that a record of such consents is maintained. Should such consent be revoked by a data subject, the data controller is responsible for communicating the fact of such revocation to the data processor, and the data processor remains responsible for implementing data controller’s instruction with respect to the processing of those personal data.
3.1. Without prejudice to any existing contractual arrangements between the parties, the data processor will treat all personal data as confidential and inform all its employees, agents, and/or approved subprocessors engaged in processing the personal data about the confidential nature of the personal data.
4.1. Taking into account the state of the art; the costs of implementation; 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 the data controller and data processor will implement appropriate technical and organizational measures to ensure a level of security of the processing of personal data appropriate to the risk. These measures will include, at a minimum, the security measures agreed upon by the parties in Annex 2.
4.2. Both the data controller and the data processor will maintain written security policies that are fully implemented and applicable to the processing of personal data. At a minimum, such policies should include assignment of internal responsibility for information security management, devoting adequate personnel resources to information security, carrying out verification checks on permanent staff who will have access to the personal data, conducting appropriate background checks requiring employees, vendors, and others with access to personal data to enter into written confidentiality agreements, and conducting training to make employees and others with access to personal data aware of information security risks presented by the processing.
4.3. The data processor will provide the data controller and/or the data controller´s auditors with access to any information relating to the processing of personal data as may be reasonably required by the data controller to establish the data processor´s compliance with this data processing agreement, and/or to establish the data processor’s compliance with any approved code of conduct or certification mechanism.
5. The data processor’s adherence to either an approved code of conduct or an approved certification mechanism recognized under the EU Data Protection Law may be used as an element by which the data processor may demonstrate compliance with the requirements set out in Annex 2.
Improvements to Security
5.1. The parties acknowledge that security requirements are constantly changing, and that effective security requires frequent evaluation and regular improvements of outdated security measures. The data processor will therefore evaluate the measures as implemented in accordance with Article 4 on an ongoing basis in order to maintain compliance with the requirements set out in Article 4. The parties will negotiate in good faith any applicable cost to implement material changes required by specific updated security requirements set forth by the EU Data Protection Law or by data protection authorities of competent jurisdiction.
6. Data Transfers
6.1. To the extent that the data controller or data processor are relying on a specific statutory mechanism to normalize international data transfers and that mechanism is subsequently modified, revoked, or held in a court of competent jurisdiction to be invalid the data controller and the data processor agree to cooperate in good faith to promptly suspend the transfer or to pursue a suitable alternative mechanism that can lawfully support the transfer.
7. Information Obligations and Incident Management
7.1. When the data processor becomes aware of an incident that has a material impact on the processing of the personal data, it will promptly notify the data controller about the incident. The data processor will at all times cooperate with the data controller and follow the data controller’s instructions with regard to such incidents in order to enable the data controller to perform a thorough investigation into the incident, formulate a correct response, and take suitable further steps in respect of the incident.
7.2. The term incident will be understood to mean in any case:
7.2.1. a complaint or request with respect to the exercise of a data subject’s rights under the EU Data Protection Law
7.2.2. an investigation into or seizure of personal data by government officials, or a specific indication that such an investigation or seizure is imminent
7.2.3. any unauthorized or accidental access, processing, deletion, loss, or any form of unlawful processing of personal data
7.2.4. any breach of the security and/or confidentiality as set out in this data processing agreement leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data or any indication of such breach having taken place or about to take place;
7.2.5. where implementing an instruction received from the data controller would in the data processor’s opinion violate applicable laws to which the data controller or the data processor are subject.
7.3. The data processor will have written procedures which enable it to promptly respond to the data controller about an incident in place at all times. Where the incident is reasonably likely to require a notification of a data breach by the data controller under the EU Data Protection Law, the data processor will implement its written procedures in a way that it is in a position to notify the data controller without delay after the data processor becomes aware of such an incident.
7.4. Any notifications to the data controller pursuant to this will be addressed to the data controller in order to assist the data controller with fulfilling its obligations under the EU Data Protection Law and should contain:
7.4.1. a description of the nature of the incident, including where possible the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned
7.4.2. the name and contact details of the data processor’s data protection officer or another point of contact where more information can be obtained
7.4.3. a description of the likely consequences of the incident
7.4.4. a description of the measures taken or proposed to be taken by the data processor to address the incident including measures to mitigate its possible adverse effects where appropriate.
8. Contracting with Subprocessors
8.1. The data processor will not subcontract any of its service-related activities consisting (partly) of processing personal data or requiring personal data to be processed by any third party without prior written authorization of the data controller.
8.2. The data controller authorizes the data processor to engage the subprocessors listed on the subprocessors page for service-related data processing activities for the controller. The data processor will inform the data controller about any addition or replacement of such subprocessors giving the data controller an opportunity to object to such changes. If the data controller timely sends the processor a written objection notice setting forth a reasonable basis for objection, the parties will make good effort to resolve the data controller’s objection. In the absence of a resolution the data processor will make commercially reasonable efforts to provide data controller with the level of service described in the service agreement without using the subprocessor to process the data controller’s personal data. If the data processor’s efforts are not successful within a reasonable time, each party may terminate the portion of the service which cannot be provided without the subprocessor, and the data controller will be entitled to a pro-rated refund of the applicable service fees.
8.3. Notwithstanding any authorization by the data controller within the meaning of the preceding paragraph the data processor will remain fully liable vis-à-vis the data controller for the performance of any subprocessor that fails to fulfill its data protection obligations.
8.4. The data processor will ensure that the subprocessor is bound by data protection obligations compatible with those of the data processor under this data processing agreement, will supervise compliance of it, and must in particular impose the obligation to implement appropriate technical and organizational measures on its subprocessors in such manner that the processing will meet the requirements of the EU Data Protection Law.
8.5. The data controller may request that the data processor audit a third party subprocessor or provide confirmation that such an audit has occurred (or, where available, obtain or assist customer with obtaining a third-party audit report concerning the third party subprocessor’s operations) to ensure compliance with its obligations imposed by the data processor in conformity with this agreement.
9. Returning or Destruction of Personal Data
9.1. Upon termination of this data processing agreement, upon the data controller’s written request, or upon fulfillment of all purposes agreed in the context of the services whereby no further processing is required the data processor will at the discretion of the data controller delete, destroy, or return all personal data to the data controller and destroy or return any existing copies.
9.2. The data processor will notify all third parties supporting its own processing of the personal data of the termination of the data processing agreement and ensure that all such third parties will destroy or return the personal data to the data controller at the data controller’s discretion.
10. Assistance to Data Controller
10.1. The data processor will assist the data controller by appropriate technical and organizational measures as much as possible with the fulfillment of the data controller’s obligation to respond to requests for exercising the data subject’s rights under the EU Data Protection Law.
10.2. Taking the nature of processing and the information available to the data processor into account, the data processor will assist the data controller with ensuring compliance with obligations pursuant to Section 4 (Security), as well as other data controller obligations under the EU Data Protection Law that are relevant to the data processing described in Annex 1.
10.3. The data processor will make all information necessary to demonstrate compliance with the data processor’s obligations available to the data controller, allow for, and contribute to audits, including inspections, conducted by the data controller or another auditor mandated by the data controller.
11. Duration and Termination
11.1. This data processing agreement will come into effect on the date stated below with the names and signatures of the data controller and data processor.
11.2. Termination or expiration of this data processing agreement will not discharge the data processor from its confidentiality obligations.
11.3. The data processor will process personal data until instructed by the data controller to cease processing, or until such data are returned or destroyed on the data controller’s instruction.
12. Choice of Law and Jurisdiction
12.1. The parties to this DPA agree to submit to the choice of law and jurisdiction specified in the principle terms and conditions with respect to any disputes or claims arising under this DPA, including disputes regarding its existence, validity, or termination.
Types of personal data that will be processed in the scope of the Data Processing Agreement:
Customer and/or user’s first and last name, email address, physical address, company name, payment gateway transactions, phone number, username, and password. NO credit card or payment method information will ever be stored by us.
Categories of Data Subjects:
Customers and users.
Nature and purpose of the Data Processing:
To provide our users and customers with our products and services.
Annex 2: Security Measures
Data Processor will:
1. ensure that the personal data can be accessed only by authorized personnel for the purposes of this data processing agreement
2. take all reasonable measures to prevent unauthorized access to the personal data through the use of appropriate physical and logical (passwords) entry controls, securing areas for data processing, and implementing procedures for monitoring the use of data processing facilities
3. build in system and audit trails
4. use secure passwords, network intrusion detection technology, encryption and authentication technology, secure login procedures, and virus protection
5. account for all risks presented by processing, for example from accidental or unlawful destruction, loss, or alteration, unauthorized or unlawful storage, processing, access, or disclosure of personal data
6. ensure pseudonymization and/or encryption of personal data where appropriate
7. maintain the ability to ensure ongoing confidentiality, integrity, availability, and resilience of processing systems and services
8. maintain the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
9. implement a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of processing of personal data
10. monitor compliance on an ongoing basis.
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