This Data Processing Agreement (“DPA”) forms part of the Terms of Use (or other similarly titled written or
electronic agreement addressing the same subject matter) (“Agreement") between Customer (as
defined in the Agreement) and “Empathia AI Inc.” under which the
Processor provides the Controller with the software
and
services (the “Services"). The Controller and the Processor are individually referred to as
a
“Party” and
collectively as the “Parties”.
The Parties seek to implement this DPA to comply with the requirements of EU GDPR in relation to Processor’s
processing of Personal Data as part of its obligations under the Agreement.
This DPA shall apply to Processor’s processing of Personal Data, provided by the Controller as part of
Processor’s obligations under the Agreement.
Except as modified below, the terms of the Agreement shall remain in full force and effect.
-
Definitions
Terms not otherwise defined herein shall have the meaning given to them in the EU GDPR or the
Agreement.
The
following terms shall have the corresponding meanings assigned to them below:
- "Data Transfer" means a transfer of the Personal Data from the Controller to
the
Processor, or between two establishments of the
Processor, or with a Sub-processor by the Processor.
- "EU GDPR" means the 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
and repealing
Directive 95/46/EC (General Data Protection Regulation)
- "Standard Contractual Clauses" means the contractual clauses attached hereto as
Schedule 1 pursuant to the European Commission’s Implementing Decision
(EU) 2021/914 of 4 June 2021 on Standard Contractual Clauses for the transfer of Personal Data
to
processors established
in third countries which do not ensure an adequate level of data protection.
- "Controller" means the natural or legal person, public authority, agency, or
other
body which, alone or jointly with others,
determines the purposes and means of the processing of personal data; where the purposes and
means
of such processing
are determined by Union or Member State law, the controller or the specific criteria for its
nomination may be provided
for by Union or Member State law.
- "Processor" means a natural or legal person, public authority, agency, or other
body which processes personal data on behalf of the
controller.
- "Sub-processor" means a processor/ sub-contractor appointed by the Processor
for
the provision of all or parts of the Services and
Processes the Personal Data as provided by the Controller.
-
Purpose of this Agreement
This DPA sets out various obligations of the Processor in relation to the Processing of Personal Data
and
shall be
limited to the Processor’s obligations under the Agreement. If there is a conflict between the
provisions of the
Agreement and this DPA, the provisions of this DPA shall prevail.
- Categories of Personal Data and Data Subjects
The Controller authorizes permission to the Processor to process the Personal Data to the extent of
which
is determined
and regulated by the Controller. The current nature of the Personal Data is specified in Annex I to
Schedule 1 to this
DPA.
- Purpose of Processing
The objective of Processing of Personal Data by the Processor shall be limited to the Processor’s
provision of the
Services to the Controller and or its Client, pursuant to the Agreement.
- Duration of Processing
The Processor will Process Personal Data for the duration of the Agreement, unless otherwise agreed
upon
in writing by
the Controller.
- Data Controller’s Obligations
- The Data Controller shall warrant that it has all necessary rights to provide the Personal Data
to
the Data Processor
for the Processing to be performed in relation to the agreed services. To the extent required by
Data Privacy Laws, Data
Controller is responsible for ensuring that it provides such Personal Data to Data Processor
based
on an appropriate
legal basis allowing lawful processing activities, including any necessary Data Subject consents
to
this Processing are
obtained, and for ensuring that a record of such consents is maintained. Should such consent be
revoked by the Data
Subject, the Data Controller is responsible for communicating the fact of such revocation to the
Data Processor.
- The Data Controller shall provide all natural persons from whom it collects Personal Data with
the
relevant privacy
notice.
- The Data Controller shall request the Data Processor to purge Personal Data when required by the
Data Controller or any
Data Subject whom it collects Personal Data unless the Data Processor is otherwise required to
retain the Personal Data
by applicable law.
- The Data Controller shall immediately advise the Data Processor in writing if it receives or
learns
of any:
- Complaint or allegation indicating a violation of Data Privacy Laws regarding Personal
Data;
- Request from one or more individuals seeking to access, correct, or delete Personal
Data;
- Inquiry or complaint from one or more individuals relating to the collection,
processing,
use, or transfer of Personal
Data; and
- Any regulatory request, search warrant, or other legal, regulatory, administrative, or
governmental process seeking
Personal Data
- Data Processor’s Obligations
- The Processor will follow written and documented instructions received, including email, from
the
Controller, its
affiliate, agents, or personnel, with respect to the Processing of Personal Data (each, an
“Instruction”).
- The Processing described in the Agreement and the relating documentation shall be considered as
Instruction from the
Controller.
- At the Data Controller’s request, the Data Processor will provide reasonable assistance to the
Data
Controller in
responding to/ complying with requests/ directions by Data Subject in exercising their rights or
of
the applicable
regulatory authorities regarding Data Processor’s Processing of Personal Data.
- In relation to the Personal Data, Data Processor shall obtain consent (where necessary) and/or
provide notice to the
Data Subject in accordance with Data Protection Laws to enable shared Personal Data to be
provided
to, and used by, the
other Party as contemplated by this Agreement.
- Where shared Personal Data is transferred outside the Data Processor’s territorial boundaries,
the
transferor shall
ensure that the recipient of such data is under contractual obligations to protect such Personal
Data to the same or
higher standards as those imposed under this Addendum and the Data Protection Laws.
- The processor shall inform the controller if, in its opinion, a processing instruction infringes
applicable legislation
or regulation.
- As A Data Processor, considering the nature of the processing and the information available to
the Data Processor, the
Data Processor shall assist the data controller in conducting any necessary Data Protection
Impact
Assessments (DPIAs),
as required under GDPR.
- Data Secrecy
- To Process the Personal Data, the Processor will use personnel who are
- Informed of the confidential nature of the Personal Data, and
- Perform the Services in accordance with the Agreement.
- The Processor will regularly train individuals having access to Personal Data in data security
and
data privacy in
accordance with accepted industry practice and shall ensure that all the Personal Data is kept
strictly confidential.
- The Processor will maintain appropriate technical and organizational measures for protection of
the
security,
confidentiality, and integrity of the Personal Data as per the specifications as per the
standards
mutually agreed in
writing by the Parties.
- Audit Rights
- Upon Controller’s reasonable request, the Processor will make available to the Controller,
information as is reasonably
necessary to demonstrate Processor’s compliance with its obligations under the EU GDPR or other
applicable laws in
respect of its Processing of the Personal Data.
- When the Controller wishes to conduct the audit (by itself or through a representative) at
Processor’s site, it shall
provide at least fifteen (15) days’ prior written notice to the Processor; the
Processor will
provide reasonable
cooperation and assistance in relation to audits, including inspections, conducted by the
Controller
or its
representative.
- The Controller shall bear the expense of such an audit.
- Mechanism of Data Transfers
Any Data Transfer for the purpose of Processing by the Processor in a country outside the European
Economic Area (the
“EEA”) shall only take place in compliance as detailed in Schedule 1 to the DPA.
Where
such model clauses have not been
executed at the same time as this DPA, the Processor shall not unduly withhold the execution of such
template model
clauses, where the transfer of Personal Data outside of the EEA is required for the performance of
the
Agreement.
- Sub-processors
- The Controller acknowledges and agrees that the Processor, may engage a third-party
Sub-processor(s)
in connection with
the performance of the Services, provided such Sub-processor(s) take technical and
organizational
measures to ensure
confidentiality of Personal Data shared with them; The current Sub-processors engaged by the
Processors and approved by
the Controller are listed in Annex III of Schedule 1 hereto. The processor shall notify the
controller at least thirty
(30) calendar days in advance of any intended changes or additions to its Sub-processors listed
in
Annex III by emailing
notice of the intended change to Customer. In accordance with Article 28(4) of the GDPR, the
Processor shall remain
liable to Controller for any failure on behalf of a Sub-processor to fulfil its data protection
obligations under the
DPA in connection with the performance of the Services.
- If the Controller has a concern that the Sub-processor(s) Processing of Personal Data is
reasonably
likely to cause the
Controller to breach its data protection obligations under the GDPR, the Controller may object
to
Processor’s use of
such Sub-processor and the Processor and Controller shall confer in good faith to address such
concern.
- Personal Data Breach Notification
- The Processor shall maintain defined procedures in case of a Personal Data Breach (as defined
under
the GDPR) and shall
without undue delay notify Controller if it becomes aware of any Personal Data Breach unless
such
Data Breach is
unlikely to result in a risk to the rights and freedoms of natural persons.
- The Processor shall provide the Controller with all reasonable assistance to comply with the
notification of Personal
Data Breach to Supervisory Authority and/or the Data Subject, to identify the cause of such Data
Breach and take such
commercially reasonable steps as reasonably required to mitigate and remedy such Data Breach.
- No Acknowledgement of Fault by Processor. Processor’s notification of or response to a Personal
Data
Breach under this
DPA will not be construed as an acknowledgement by Processor of any fault or liability with
respect
to the data
incident.
- Return and Deletion of Personal Data
- The Processor shall at least thirty (30) days from the end of the Agreement or
cessation of the Processor’s Services
under the Agreement, whichever occurs earlier, shall return to the Controller all the Personal
Data,
or if the
Controller so instructs, the Processor shall have the Personal Data deleted. The Processor shall
return such Personal
Data in a commonly used format or in the current format in which it was stored at discretion of
the
Controller, soon as
reasonably practicable following receipt of Controller’s notification.
- In any case, the Processor shall delete Personal Data including all the copies of it as soon as
reasonably practicable
following the end of the Agreement.
- Technical and Organizational Measures
Having regard to the state of technological development and the cost of implementing any measures,
the
Processor will
take appropriate technical and organizational measures against the unauthorized or unlawful
processing
of Personal Data
and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of
security appropriate
to: (a) the harm that might result from unauthorized or unlawful processing or accidental loss,
destruction or damage;
and (b) the nature of the data to be protected [including the measures stated in Annex II of
Schedule 1]
Enter Controller
organization’s name here
By: ____________________________
Name: __________________________
Title: ___________________________
Date: ___________________________
Empathia Ai Inc.
By: ____________________________
Name: Walter Yuan, Ph. D.
Title: CEO/Cofounder
Date: ___________________________
SCHEDULE 1
ANNEX I
A. LIST OF PARTIES
Data exporter(s):
Name: Customer (As set forth in the relevant Order Form).
Address: As set forth in the relevant Order Form.
Contact person’s name, position, and contact details: As set forth in the relevant Order
Form.
Activities relevant to the data transferred under these Clauses: Recipient of the Services
provided
by Empathia AI Inc.
in accordance with the Agreement.
Signature and date: Signature and date are set out in the Agreement.
Role (Controller/ Processor): Controller
Data importer(s):
Name: Empathia AI Inc.
Address: 271 South Chester Ave, Office 119, Pasadena, CA
91106
Contact person’s name, position, and contact details: Yang Huang
Ph.D., Chief Privacy Officer, po@empathia.ai
Activities relevant to the data transferred under these Clauses: Provision of the Services to the
Customer in accordance
with the Agreement.
Signature and date: Signature and date are set out in the Agreement.
Role (controller/processor): Processor.
B. Description of Transfer
Categories of data subjects whose personal data is transferred
Customer’s authorized users of the Services.
Categories of personal data transferred
Audio recording of patient-physician encounter conversation, user-uploaded Medical Records, Name,
Address, Date of
Birth, Age, Education, Email, Gender, Image, Job, Language, Phone, Related person, Related URL, User
ID,
Username.
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 specialized training), keeping a record of access to
the
data,
restrictions for onward transfers or additional security measures.
Health-related data collected.
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
Transcribe the encounter audio recording and summarize the transcript and past medical
records.
Purpose(s) of the data transfer and further processing
The purpose of the transfer is to facilitate the performance of the Services more fully described
in
the Agreement and
accompanying order forms.
The period for which the personal data will be retained, or, if that is not
possible, the criteria used to determine
that period
The period for which the Customer Personal Data will be retained is more fully described in the
Agreement, Addendum, and
accompanying order forms.
For transfers to (sub-) processors, also specify subject matter, nature, and
duration of the processing
The subject matter, nature, and duration of the Processing more fully described in the Agreement,
Addendum, and
accompanying order forms.
C. Competent Supervisory Authority
Data exporter is established in an EEA country.
The competent supervisory authority is as determined by application
of
Clause 13 of the EU SCCs.
Description of the technical and organisational security measures implemented by Empathia AI Inc. as the data
processor/data importer to ensure an appropriate level of security, taking into account the nature, scope,
context, and
purpose of the processing, and the risks for the rights and freedoms of natural persons.