European Addendum

European Service Addendum

THESE ADDITIONAL TERMS PERTAIN TO CUSTOMERS IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND OR THE UK ("EUROPEAN SERVICE ADDENDUM"). THIS EUROPEAN SERVICE ADDENDUM IS INCORPORATED INTO SERVICE AGREEMENTS WITH CUSTOMERS WHO RESIDE IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND OR THE UK. YOUR EXECUTION OF A CUSTOMER ORDER FOR SERVICES CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE ADDITIONAL TERMS. YOU ACKNOWLEDGE AND AGREE THAT CENTRALREACH HAS THE RIGHT TO ESTABLISH TERMS FOR THE CONTINUED USE OF OUR SERVICES. ACCORDINGLY, CENTRALREACH RESERVES THE RIGHT TO MODIFY THESE TERMS FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. YOU AGREE THAT YOUR USE OF THE SERVICES CONSTITUTES YOUR AGREEMENT TO ANY SUCH MODIFICATION. TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH IN THE TERMS OF SERVICE AND ADDITIONAL AGREEMENTS AS APPLICABLE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF SERVICE AND OTHER ADDITIONAL AGREEMENTS AND THIS EUROPEAN SERVICE ADDENDUM, THE TERMS OF THIS EUROPEAN SERVICE ADDENDUM SHALL CONTROL.

 

  1. DATA PROCESSING UNDER THE EUROPEAN DATA PROTECTION LEGISLATION
    As used herein, "European Data Protection Legislation" shall mean the General Data Protection Regulation ((EU) 2016/679) ("GDPR") (as amended or replaced from time to time), and any national implementing laws or regulations and secondary legislation, as amended from time to time and any other data protection, data security and privacy laws pertaining to residents of the European Economic Area, Switzerland or the UK.To the extent that you are covered by the European Data Protection Legislation, you acknowledge and agree to the following:

    • Both parties will comply with all applicable requirements of the European Data Protection Legislation. You acknowledge that Customer Content may constitute or include "personal data" under the GDPR.
    • The parties acknowledge that for the purposes of the European Data Protection Legislation, you are the data controller and CentralReach is the data processor (where Data Controller and Data Processor have the meanings as defined in the European Data Protection Legislation). The categories of personal data and data subjects (as defined in the GDPR) are set out in the Appendix of this European Service Addendum.
    • Without prejudice to the generality of Section 1.a. of this European Service Addendum, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of Customer Content to the United States for the duration and purposes of the Services. You also represent and warrant that you have all necessary rights and consents to collect all information that you provide through your use of the Services, and that you will use any such information collected only in strict compliance with the European Data Protection Legislation.
    • Without prejudice to the generality of Section 1.a. of this European Service Addendum, CentralReach shall, in relation to any Customer Content processed in connection with the performance by CentralReach of the Services:
    • process Customer Content only as required to provide you with the Services, and you agree that such processing is being done at your express request and with your express consent;
    • ensure that CentralReach has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of Customer Content and against accidental loss or destruction of, or damage to, Customer Content, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Customer Content, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Content can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
    • ensure that all CentralReach personnel who have access to and/or process Customer Content are obliged to keep Customer Content confidential;
    • process (directly or indirectly through one of our affiliates, under common control with us) Customer Content in the United States pursuant to the standard contractual clauses, attached at Exhibit A, which is in the form approved by the European Commission or other supervisory authority from time to time, which are binding on you and CentralReach; with such clauses hereby incorporated by reference to this European Service Addendum,
    • except for the transfer of Customer Content to the United States or to one or more of our affiliates, under common control with us, who CentralReach may utilize as a subprocessor, and with respect to certain applications, CentralReach shall not transfer Your Content to any other jurisdiction outside of the European Economic Area, Switzerland and the UK unless CentralReach notifies you in writing of such transfer and, in this event, the following conditions shall be fulfilled:
    • CentralReach has provided appropriate safeguards in relation to the transfer;
    • the data subject has enforceable rights and effective legal remedies;
    • CentralReach has complied with obligations under the European Data Protection Legislation by providing an adequate level of protection to any of Customer Content that is transferred; and
    • CentralReach has complied with reasonable instructions notified to us in advance by you with respect to the processing of Customer Content;
    • assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the European Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, and you agree to promptly (and in any case, within any time period prescribed by law or regulation) notify us if any data subject requests removal of any personal information relating to such data subject;
    • notify you without undue delay on becoming aware of a breach of Customer Content;
    • at your written direction, delete, return or de-identify Customer Content and copies thereof on termination of the Services unless required by applicable law to store Customer Content; and
    • maintain complete and accurate records and information to demonstrate our compliance with this clause.
    • You acknowledge that CentralReach may utilize third-party integration partners to process Customer Content, and you hereby consent to such third-party processing. CentralReach shall remain fully liable to you for all acts or omissions of any third-party processor appointed by us pursuant to this clause, subject to applicable exclusions and limitations of liability set forth in the Terms.
    • You agree that in lieu of the obligations set forth in this European Service Addendum, CentralReach may adopt any applicable controller-to-processor standard clauses or similar terms forming part of an applicable certification scheme.

  1. NOTICES PURSUANT TO EUROPEAN DATA PROTECTION LEGISLATION
    Customer agrees that any request pursuant to Section 1 of this European Service Addendum shall be made in writing and sent to privacy@centralreach.com.Last Revision Date: September 21, 2020

EXHIBIT A
Processor Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, CentralReach (herein, "data importer") and you (herein, "data exporter") agree that the following Contractual Clauses (the Clauses) shall be binding on the parties in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

 

1. DEFINITIONS

    • For the purposes of the Clauses:

      "personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority" Shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the "Directive");
      "the data exporter" Shall mean you as the controller who transfers the personal data;
      "the data importer" Shall mean CentralReach as the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of these Clauses and who is not subject to a third country's system ensuring to adequate protection within the meaning of Article 25(1) of the Directive;
      "the sub-processor" Means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract;
      "the applicable data protection law" Shall mean the legislation protecting the fundamental rights and freedoms of natural persons and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
      "technical and organizational security measures" Shall mean those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

2. DETAILS OF THE TRANSFER
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix I which forms an integral part of the Clauses.

 

3. THIRD-PARTY BENEFICIARY CLAUSE

    • The data subject can enforce against the data exporter this Clause, Clause 4.1.2 to 4.1.8, Clause 5.1.1 to 5.1.5, and 5.1.7 to 5.1.10, Clause 6.1 and 6.2, Clause 7, Clause 8.2, and Clauses 9 to 12 as third-party beneficiaries.
    • The data subject can enforce against the data importer this Clause, Clause 5.1.1 to 5.1.5 and 5.1.7, Clause 6, Clause 7, Clause 8.2, and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
    • The data subject can enforce against the sub-processor this Clause 3.3, Clause 5.1 to Clause 5.1.5 and Clause 5.1.7, Clause 6, Clause 7, Clause 8.2, and Clause 9 to Clause 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
    • The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

4. OBLIGATIONS OF THE DATA EXPORTER

    • The data exporter agrees and warrants:

      • that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
      • that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and these Clauses;
      • that the data importer shall provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
      • that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
      • that it will ensure compliance with the security measures;
      • that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of the Directive;
      • that it agrees to forward the notification received from the data importer pursuant to Clause 5.1.2 and Clause 8(3) to the data protection supervisory authority if it decides to continue the transfer or to lift its suspension;
      • to make available to the data subjects upon request a copy of the Clauses set out in this Annex, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
      • that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and
      • that it will ensure compliance with Clause 4.1 to Clause 4.1.9.

5. OBLIGATIONS OF THE DATA IMPORTER¹

    • 5.1 The data importer agrees and warrants:
    • 5.1.1 to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
    • 5.1.2 that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
    • 5.1.3 that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
    • 5.1.4 that it shall promptly notify the data exporter about:

      1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
      2. any accidental or unauthorized access; and
      3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

    • 5.1.5 to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
    • 5.1.6 at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
    • 5.1.7 to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
    • 5.1.8 that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
    • 5.1.9 that the processing services by the sub-processor will be carried out in accordance with Clause 11; and
    • 5.1.10 to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

      ¹ Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security defence, public security, the prevention. investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions; tax-reporting requirements or anti-money-laundering reporting requirements.

6. LIABILITY

    • 6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
    • 6.2 If a data subject is not able to bring a claim for compensation in accordance with Clause 6.1 against the data exporter arising out of a breach by the data importer or its sub-processor of any of its obligations referred to in Clause 3 or in Clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
    • 6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in Clauses 6.1 and 6.2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

7. MEDIATION AND JURISDICTION

    • 7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

      • to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
      • to refer the dispute to the courts in the Member State in which the data exporter is established.

    • 7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

8. COOPERATION WITH SUPERVISORY AUTHORITIES

    • 8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
    • 8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
    • 8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to Clause 8.2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5.1.2.

9. GOVERNING LAW
The Clauses shall be governed by the law of the Member State in which the data exporter is established.

 

10. VARIATION OF THE CONTRACT
The parties undertake not to vary or modify the terms of the Clauses. This does not preclude the parties from adding clauses on business-related issues where required as long as they do not contradict the Clause.

 

11. SUB-PROCESSING

    • 11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses². Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.
    • 11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in Clause 6.1 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
    • 11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in Clause 11.1 shall be governed by the law of the Member State in which the data exporter is established.
    • 11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5.1.10, which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

² This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

 

12. OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA PROCESSING SERVICES

    • 12.1 The parties agree that on the termination of the provision of data processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
    • 12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in Clause 12.1.

APPENDIX 1

TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties

(*) The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix)

 

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

Shall mean you as the controller who transfers the personal data of your clients in connection with use of CentralReach software products and services.

 

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

  • Shall mean CentralReach as the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country's system ensuring to adequate protection within the meaning of Article 25(1) of the Directive

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

  • Data subjects are your clients, students or others who receive treatment services from you.

Categories of data

The personal data transferred concern the following categories of data (please specify):

  • Personally identifiable data concerning the data subject such as name, address, contact information, insurance information, payment information and health and biometric data.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

  • Health and biometric data.  
  • Processing operations
  • The personal data transferred will be subject to the following basic processing activities (please specify):
  • Processing of data will be according to the functionality of the CentralReach service being used by the data exporter, such as processing for client record keeping, billing, insurance claims submission, health and biometric data gathered pursuant to assessments and treatment curriculums, clinical data reporting and related services.

APPENDIX 2

TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.  Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4.1.4 and 5.1.3 (or document/legislation attached):

 

See Security At CentralReach at https://centralreach.com/security/.