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Data Processing Agreement

This data processing agreement (“DPA”) is based on the standard contractual clauses between controllers and processors under Article 28 (7) of Regulation (EU) 2016/679 of the European Parliament and of the Council and Article 29 (7) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (the “Standard Contractual Clauses”). 

For the purposes of this DPA, “processor” shall mean Zenfit ApS whereas “controller” shall mean the “User” as defined in the terms and conditions.


SECTION I

Clause 1

Purpose and scope 

(a) The purpose of these Standard Contractual Clauses (the Clauses) is to ensure compliance with Article 28(3) and (4) 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 (the “GDPR”).

(b) The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of the GDPR. 

(c) These Clauses apply to the processing of personal data as specified in Annex II.

(d) Annexes I to IV are an integral part of the Clauses.

(e) These Clauses are without prejudice to obligations to which the controller is subject by virtue of the GDPR. 

(f) These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of the GDPR.

Clause 2 

Invariability of the Clauses 

(a) The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them. 

(b) This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.

Clause 3

Interpretation

(a) Where these Clauses use the terms defined in the GDPR, 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 the GDPR.

(c) These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in the GDPR or in a way that prejudices the fundamental rights or freedoms of the data subjects.

Clause 4

Hierarchy

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

Clause 5 – Optional

Docking clause

[NOT APPLICABLE]


SECTION II – OBLIGATIONS OF THE PARTIES

Clause 6 

Description of processing(s)

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 II.

Clause7 

Obligations of the Parties 

7.1. Instructions

(a) 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. 

(b) The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe the GDPR or the applicable Union or Member State data protection provisions.

7.2. Purpose limitation

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

7.3. Duration of the processing of personal data

Processing by the processor shall only take place for the duration specified in Annex II. 

7.4. Security of processing

(a) The processor shall at least implement the technical and organisational measures specified in Annex III 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, unauthorised 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. 

(b) 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 contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. 

7.5. 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.

7.6 Documentation and compliance

(a) The Parties shall be able to demonstrate compliance with these Clauses.

(b) The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.  

(c) The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from the GDPR. At the controller’s request, the processor shall also permit 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 an audit, the controller may take into account relevant certifications held by the processor.    

(d) The controller may choose to conduct the audit by itself or mandate an 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. 

(e) The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

7.7. Use of sub-processors

(a)

The processor has the controller’s general authorisation 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 7 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.

(b) 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, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to the GDPR.

(c) 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 secrets or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.

(d) 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 fulfil its contractual obligations.

7.8. International transfers

(a) Any transfer of data to a third country or an international organisation 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 Chapter V of the GDPR. 

(b) The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. 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 Chapter V of the GDPR, the processor and the sub-processor can ensure compliance with Chapter V of the GDPR by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of the GDPR, provided the conditions for the use of those standard contractual clauses are met.

Clause 8

Assistance to the controller 

(a) 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 authorised to do so by the controller.

(b) 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.

(c) In addition to the processor’s obligation to assist the controller pursuant to Clause 8(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 consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;

(3) 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;

(4) the obligations in Article 32 the GDPR.

(d) The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required. 

Clause 9

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 Articles 33 and 34 the GDPR, where applicable, taking into account the nature of processing and the information available to the processor.

9.1 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:

(a) 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); 

(b) in obtaining the following information which, pursuant to Article 33(3) the GDPR, 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.

(c) in complying, pursuant to Article 34 the GDPR, 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.

9.2 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 having become aware of the breach. Such notification shall contain, at least:

(a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);

(b) the details of a contact point where more information concerning the personal data breach can be obtained;

(c) 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.

The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under Articles 33 and 34 of the GDPR. 


SECTION III – FINAL PROVISIONS

Clause 10 

Non-compliance with the Clauses and termination

(a) Without prejudice to any provisions of the GDPR, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.

(b) The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:

(1) the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses 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 these Clauses or its obligations under the GDPR; 

(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 these Clauses or to the GDPR.

(c) The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.

(d) Following termination of the contract, 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 these Clauses. 


ANNEX I LIST OF PARTIES

Controller(s): “User” as defined in the terms and conditions.

Processor(s): Zenfit ApS

Any privacy related questions can be directed to dpo@zenfitapp.com.


ANNEX II: DESCRIPTION OF THE PROCESSING

Categories of data subjects whose personal data is processed

Clients (end-users) as well as potential clients to the controller.

Categories of personal data processed

The processing includes the following types of personal data about data subjects:

  • email, phone, first name, last name, birth year, birth month, payment details, body images, personal notes and chat messages, height, weight, body measures and nutrition preferences.
  • the processing might also include special categories of personal data (data concerning health), including body mass index, under certain circumstances.

Sensitive data processed (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.

Health information is processed for the controller to be informed of any relevant health related issues such as diseases, illnesses, injuries or allergies that may impact the controller’s ability to provide coaching services.

The applied restrictions and safeguards are included in Annex III.

Nature of the processing

The processor’s processing of personal data on behalf of the controller shall be carried out by the processor in performing the following services:

  • Processing and storing information on the controller’s clients when they use the Zenfit app.

Purpose(s) for which the personal data is processed on behalf of the controller

The purpose of the processor’s processing of personal data on behalf of the controller is:

  • For controller to be able to use the platform which is owned and managed by the processor to collect and process data about the controller’s clients, chat with clients, facilitate payments from clients to the coach, etc.
  • For processor to be able offer support services for the controller, e.g. in responding to clients directly where they have technical questions or issues related to the platform or app. 

Duration of the processing

Indefinitely, for as long as the Agreement is active, and until the controller either a) asks for the personal data to be deleted, b) asks for the data to be returned, with any copies being deleted by the processor. 

The processor however also operates with a fixed data retention policy as follows:

  • Client pictures and health data is only stored with the processor for a maximum period of 6 months after client inactivity. 
  • Client personal data (excluding client pictures and health data) is stored with the processor for a maximum period of 36 months after client inactivity. 
  • Client payment details and any other mandatory recordkeeping details will be kept for a maximum period of 60 months after client inactivity.

To summarise, personal data will be permanently deleted and/or irreversibly anonymized in accordance with the below time periods unless the controller requests that the data is erased prior hereto, cf. a) and b) above.

Personal data

Retention period

Body images and health information

6 months after client’s last activity

Contact information, chat messages, personal notes and preferences

36 months after client’s last activity

Payment details and mandatory recordkeeping details

60 months after client’s last activity

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

Any sub-processors, as listed in Annex IV, will be used solely to process the same subject matter and personal data as already processed by the processor, and to the same nature and with the same duration as already described in this Annex II.

Nature of the processing

The processor’s processing of personal data on behalf of the controller shall be carried out by the processor in performing the following services:

 

Processing and storing information on the controller’s clients when they use the Zenfit app.Anonymization of personal data on controller’s clients to be used for aggregated, statistical data. Purpose(s) for which the personal data is processed on behalf of the controller. The purpose of the processor’s processing of personal data on behalf of the controller is:


For controller to be able to use the platform which is owned and managed by the processor to collect and process data about the controller’s clients, chat with clients, facilitate payments from clients to the coach, etc.
For processor to be able offer support services for the controller, e.g. in responding to clients directly where they have technical questions or issues related to the platform or app.
For processor to be able to provide valuable insights (anonymized and aggregated) to the controller.


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

Description of the technical and organisational security measures implemented by the processor(s) (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. 

Processor shall implement the following technical and organizational measures which have been confirmed as appropriate by the controller to ensure a level of security appropriate to the risks for the rights and freedoms of natural persons:

  • Anonymization, pseudonymisation and/or encryption of personal data.
  • The ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services.
  • The ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident.
  • Access to physical hardware of the processor is protected in a secure office space requiring personal keys to enter.
  • Newly developed initiatives undertaken by the processor is subject to a thorough check of impact on security measures.
  • The controller’s access to data is restricted to carefully selected company issued emails created on a manual basis, and access can be revoked instantly. Further, client profiles are anonymized when viewed by processor’s commercial teams (i.e. name, address, telephone number, pictures etc. cannot be viewed).

Further to the above, the processor operates with fixed data retention policies for different categories of client personal data for security purposes. The logic here is that personal data is irreversibly anonymized and thus effectively deleted rendered outside the scope of any relevant legislation. See the section “Duration of the processing” in Annex II for more information.

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller

For transfers to sub-processors, such sub-processor will not provide assistance directly to the controller. If relevant, any assistance will be provided by the processor.

Description of the specific technical and organisational measures to be taken by the processor to be able to provide assistance to the controller. 

Data subject rights

With regard to assistance in relation to the rights of the data subjects, the processor shall establish technical measures making it possible for the controller to provide the data subjects with information on the processing activities, including by ensuring that the controller’s privacy policy can be made available to the data subjects when using the services provided by the processor. Further, the processor’s technical setup shall be established in a way making it possible to search for information related to the data subjects in order to assist on any access requests or requests related to data portability. Also, the technical setup shall make it possible to rectify or erase personal data on the data subjects or transfer such personal data as part of the data portability rights. 

In relation to the organisational measures, the processor must establish written procedures on how any requests are to be handled in order to ensure that the controller is notified immediately. The procedures shall stress that the personnel of the processor may not respond to any requests itself, unless it is specifically authorised to do so by the controller based on a case-by-case instruction. Further, the procedures must contain guidance to the personnel of the processor on how to ensure that any instructions are followed (in relation to the specific rights in question). Especially in relation to any request on erasure, the procedures shall state that the personnel of the processor must make sure to address any data retention matters/consequences to the controller in case any such request would lead to erasure of personal data prior to the general instructed retention periods (see “Duration of the processing”).

The personnel of the processor shall receive training based on the written procedures and the processor must have measures in place in order to ensure that the internal procedures are updated when necessary. 

The processor must assist the controller in complying with any requests made by the data subjects towards the controller. This includes when a data subject makes use of his/her right to be forgotten, right to information or similar right granted by the GDPR. Such a request must be directed to the controller who must then forward such a request to the processor for any action to be taken. 

The processor will not be allowed to comply with any request made directly by a data subject unless instructed by the controller. Further, when the controller asks for assistance from the processor in the event of a data subject request, the data controller must specifically inform the processor if certain categories of personal data are to be kept by the processor for the full duration of the retention period (the full 36 months), e.g. due to serving as legal documentation or otherwise necessary for the controller to keep.

ANNEX IV: LIST OF SUB-PROCESSORS

The controller has authorized the use of the following sub-processors and, in case the sub-processors are located in third countries, instructed the controller on the transfer of personal data to such third countries:

Service Provider/ Sub-processor

Service

Location

Purpose

Zapier Inc.

Zapier

United States

API platform

Amazon Web Services

MySQL Aurora

Frankfurt

Hosting and storage

Meta

Facebook Ads

United States

Ads platform

Datadog, Inc

Datadog APM

United States

Application performance monitoring

Slack Inc

Slack

United States

Communication

ContractBook

Contractbook

Denmark

Contracts

Functional Software Inc

Sentry

United States

Application performance monitoring

Google LLC

Google Cloud

United States

Platform services and storage

Segment Inc

Segment

United States

API platform

Intercom, Inc

Intercom

United States

Customer service platform

Mixpanel Inc

Mixpanel

United States

User behaviour analytics

Hotjar Inc

Hotjar

United States

User behaviour analytics

Hubspot

Hubspot CRM

United States

CRM system

Twilio

Sendgrid

United States

Email API platform

Stripe, Inc.

Stripe

United States

Payment solution

Tilføjelse af Lenus eHealth ApS til tabellen med sub-processors. Ved purpose anføres User behaviour analytics and anonymization

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