Patient / Client Data
1 APPLICATION OF THIS ADDENDUM
1.1 This Data Processing Addendum (Addendum) applies if the Processing (as defined below) of Patient or Client Data (as defined in the Finger-Ink Terms of Service) is governed by the GDPR (as defined below).
1.2 If this Addendum applies, this Addendum forms part of the Finger-Ink Terms of Service (together, the Terms) between us and you (as defined in the Terms) and sets out the parties’ agreement in relation to the processing of Patient or Client Data in accordance with the requirements of European Union data protection laws and regulations.
1.3 We are located in New Zealand, which the European Commission has determined adequate protection within the meaning of Article 45 of the GDPR. However, to provide you with additional assurance as to our data protection commitments, this Addendum also includes Standard Contractual Clauses (as defined below), which are pre-signed by us. If you would like to opt in to the Standard Contractual Clauses, please complete the necessary details, countersign the Standard Contractual Clauses, and return a countersigned copy to us at firstname.lastname@example.org.
1.4 Except as varied in this Addendum (including the Standard Contractual Clauses, if applicable) all terms and conditions set out in the Terms continue to apply.
2.1 Unless the context requires otherwise:
a) capitalised terms used, but not defined, in this Addendum will have the meanings given to them in the GDPR (or, if not defined in the GDPR, the Terms);
b) the rules of interpretation set out in the Terms apply to this Addendum; and
c) references to clauses are references to the clauses in this Addendum.
2.2 In this Addendum:
Applicable Data Protection Laws means EU Data Protection Laws and any applicable data protection or privacy laws of any other country
EEA means the European Economic Area
EU Data Protection Laws means all laws and regulations, including laws and regulations of the European Union, the EEA and their member states and (if the United Kingdom ceases to be a member state) the United Kingdom, that apply to the Processing of Patient or Client Data, including (where applicable) the GDPR
GDPR means the European Union General Data Protection Regulation 2016/679
Instruction means the instructions set out in clause 3.3 or agreed under clause 3.4
Processing means any operation or set of operations which is performed upon Patient or Client Data, whether or not by automated means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Process has a consistent meaning
Standard Contractual Clauses means the standard contractual clauses set out in Schedule 3, as may be amended under clause 12.1.
Sub-Processor means any person appointed by us or on our behalf to Process Patient or Client Data on your behalf in connection with the Terms
2.3 If there is any conflict between any of the following, they will have precedence in the descending order of priority set out below:
a) the Standard Contractual Clauses;
b) this Addendum; and
c) the Terms.
3 PROCESSING OF PATIENT OR CLIENT DATA
3.1 With respect to the Processing of Patient or Client Data under the Terms:
a) you act as the Data Controller;
b) we act as the Data Processor to the extent that we Process Patient or Client Data. For clarity, some Patient or Client Data is held locally in the Finger-Ink App only, and we do not Process this Patient or Client Data; and
c) subject to clause 6, we may engage the Sub-Processors listed in Schedule 2.
3.2 We will comply with all Applicable Data Protection Laws that apply to our Processing of Patient or Client Data on your behalf, including all EU Data Protection Laws that apply to Data Processors.
3.3 You must, when using the Service, comply with all Applicable Data Protection Laws that apply to your Processing of Patient or Client Data, including all EU Data Protection Laws that apply to Data Controllers.
3.4 You instruct us to Process Patient or Client Data and in particular, subject to clause 6, transfer Patient or Client Data to any country or territory:
a) as reasonably necessary to provide the Service in accordance with the Terms;
b) as initiated through the use of the Service by you, your Personnel and other end users you allow to use the Service; and
c) to comply with any further instruction from you (including by email or through our support channels) that is consistent with the Terms and this Addendum.
3.5 This Addendum and the Terms are your complete and final instructions for the Processing of Patient or Client Data as at the time this Addendum takes effect. Any additional or alternate instructions must be agreed between us and you separately in writing.
3.6 We will not Process Patient or Client Data other than on your Instructions unless required by any law to which we are subject, in which case we will to the extent permitted by applicable law inform you of that legal requirement before we Process that Patient or Client Data.
3.7 As required by article 28(3) of the GDPR (and, if applicable, equivalent requirements of other Applicable Data Protection Laws), the nature and purpose of the Processing, the types of Patient or Client Data and categories of Data Subjects Processed under this Addendum are set out in Schedule 1. We may amend Schedule 1 from time to time on written notice to you as we reasonably consider necessary to meet the requirements of the GDPR (and applicable equivalent requirements of other Applicable Data Protection Laws).
3.8 The duration of Processing is limited to the duration of the Terms and the 6 month period following termination of the Terms. Our obligations in relation to Processing will continue until the Patient or Client Data has been properly deleted or returned to you in accordance with clause 11 of this Addendum.
3.9 You are solely responsible for ensuring that your Instructions comply with Applicable Data Protection Laws. It is also your responsibility to enter into data processing agreements with other relevant Data Controllers in order to allow us and our Sub-Processors to Process Patient or Client Data in accordance with this Addendum.
3.10 If, in our reasonable opinion, an Instruction infringes Applicable Data Protection Laws, we will notify you as soon as reasonably practicable.
4 DATA SUBJECT REQUESTS
4.1 To the extent permitted by law, we will notify you promptly if we receive a request from a Data Subject to exercise the Data Subject’s rights under Applicable Data Protection Laws relating to any Patient or Client Data (Data Subject Request).
4.2 Taking into account the nature of the Processing, we will assist you by implementing appropriate technical and organisational measures, to the extent possible, to fulfil your obligation to respond to a Data Subject Request under Applicable Data Protection Laws.
4.3 To the extent you do not have the ability to address a Data Subject Request, we will, on your written request, provide reasonable assistance in accordance with Applicable Data Protection Laws to facilitate that Data Subject Request. You will reimburse us for the costs arising from this assistance.
4.4 We will not respond to a Data Subject Request except on your written request or if required by applicable law.
5 OUR PERSONNEL
5.1 We will:
a) take reasonable steps to ensure the reliability of any of our Personnel engaged in the Processing of Patient or Client Data;
b) ensure that access to Patient or Client Data is limited to our Personnel who require that access as strictly necessary for the purposes of exercising our rights and performing our obligations under the Terms;
c) ensure that our Personnel engaged in Processing Patient or Client Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality; and
d) ensure that our Personnel engaged in Processing Patient or Client Data are informed of the confidential nature of the Patient or Client Data and receive appropriate training on their responsibilities.
5.2 We have appointed a data protection officer who can be contacted at email@example.com.
6.1 You acknowledge and agree that we may engage third party Sub-Processors in connection with the provision of the Service.
6.2 We have entered into (and will, for any new Sub-Processor, enter into) written agreements with each Sub-Processor containing data protection obligations which offer at least the same level of protection for Patient or Client Data as set out in this Addendum and that meet the requirements of Article 28(3) of the GDPR, as applicable to the nature of the services provided by that Sub-Processor.
6.3 You may request copies of our written agreements with Sub-Processors (which may be redacted to remove confidential information not relevant to this Addendum).
6.4 A list of current Sub-Processors for the Services as at 25 May 2018 is set out in Schedule 2. We may update the list of Sub-Processors from time to time and, subject to clause 6.5, we will give prior written notice of any new Sub-Processor.
6.5 We may engage Sub-Processors as needed to serve as an Emergency Replacement to maintain and support the Services. Emergency Replacement means a sudden replacement of a Sub-Processor where a change is outside our reasonable control. In this case, we will inform you of the replacement Sub-Processor as soon as reasonably practicable.
6.6 If you object to any new Sub-Processor, you may, despite anything to the contrary in the Terms, terminate these Terms and your right to access and use the Service without penalty on written notice, provided (in the case of a new Sub-Processor notified under clause 6.4) your notice of termination is received by us before the effective date of our notice under clause 6.4 or (in the case of a new Sub-Processor notified under clause 6.5) your notice of termination is received by us within 30 days of our notice of the new Sub-Processor. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have agreed to the new Sub-Processor.
6.7 We are liable for the acts and omissions of our Sub-Processors to the same extent we would be liable if performing the services of each Sub-Processor directly under the terms of this Addendum, except as otherwise set out in this Addendum.
We will maintain technical and organisational measures to protect the confidentiality, integrity and security (including protection against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Data) of Patient or Client Data, and to manage data security incidents affecting Patient or Client Data, in accordance with Appendix 2 of the Standard Contractual Clauses.
8 SECURITY BREACH MANAGEMENT
8.1 We will comply with all applicable laws requiring notification to you of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Patient or Client Data Processed by us or our Sub-Processors of which we become aware (Breach Incident).
8.2 We will make reasonable efforts to identify the cause of that Breach Incident, notify you within a timely manner to allow you to meet your obligations to report a Breach Incident, and take steps we consider necessary and reasonable to remediate the cause of the Breach Incident, to the extent remediation is within our reasonable control.
9 DATA PROTECTION IMPACT ASSESSMENT
Upon your written request, we will provide you with reasonable assistance needed to fulfil your obligation under the GDPR to carry out a data protection impact assessment relating to your use of the Service, to the extent you do not otherwise have access to the relevant information.
10 AUDIT AND COMPLIANCE
Upon your written request, we will submit to your audits and inspections, and provide you all information necessary, to demonstrate that both you and we are complying with our respective obligations under Applicable Data Protection Laws (including our respective obligations under Article 28 of the GDPR).
11 RETURN AND DELETION OF PATIENT OR CLIENT DATA
11.1 Subject to clauses 11.2 and 11.3, following termination of the Terms we will, to the extent we Process Patient or Client Data, delete all Patient or Client Data within 6 months from termination of the Terms.
11.2 Subject to clause 11.3, you may submit a written request to us within 10 working days of the termination of the Terms requiring us, within 20 working days of your written request, to:
a) return a complete copy of all Patient or Client Data Processed by us by secure file transfer in a common format; and
b) delete all other copies of Patient or Client Data Processed by us or any Sub-Processor.
11.3 We, or each Sub-Processor, may retain Patient or Client Data to the extent that it is required by applicable laws, provided that we ensure the confidentiality of all such Patient or Client Data and ensure that such Patient or Client Data is only processed as necessary for the purposes required under applicable laws requiring its Processing and for no other purpose.
11.4 With the exception of patient photos and signatures (which must, where deletion is required under this clause 11, be completely and permanently deleted), you agree that we may satisfy any requirement to delete Patient or Client Data under this clause 11 by anonymising the Patient or Client Data so that it is no longer Personal Data.
11.5 You are responsible for deletion of Patient or Client Data held locally in the Finger-Ink App in compliance with Applicable Data Protection Law.
12 CHANGES IN DATA PROTECTION LAWS
12.1 We may on prior written notice to you from time to time, make any variations to this Addendum (including to the Standard Contractual Clauses), which we consider (acting reasonable) are required as a result of any change in, or decision of a competent authority under, Applicable Data Protection Law, to allow transfers and Processing of Patient or Client Data to continue without breach of Applicable Data Protection Law.
12.2 If you object to any variation under clause 12.1, you may, despite anything to the contrary in the Terms, terminate these Terms and your right to access and use the Service without penalty on written notice, provided your notice of termination is received by us before the effective date of our notice. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have agreed to the variation.
13 LIMITATION OF LIABILITY
The liability of each party to the other party under or in connection with this Addendum is subject to the limitations and exclusions set out in the Terms, and any reference in the Terms to the liability of a party means the aggregate liability of that party under the Terms and this Addendum together.
If any provision of this Addendum is, or becomes unenforceable, illegal or invalid for any reason, the relevant provision is deemed to be varied to the extent necessary to remedy the unenforceability, illegality or invalidity. If variation is not possible, the provision must be treated as severed from this Addendum without affecting any other provisions of this Addendum.
DETAILS OF PROCESSING
Nature and Purpose of Processing
We will Process Patient or Client Data as necessary to provide the Service in accordance with the Terms, as further specified in our online documentation relating to the Services, and as further instructed by you and your Personnel and other end users you allow to use the Service through the use of the Service.
Duration of Processing
Subject to clause 11 of this Addendum, we will Process Patient or Client Data for the duration of the Terms and for a period of not more than 6 months after termination of the Terms, unless otherwise agreed upon in writing.
Categories of Data Subjects
You may submit Patient or Client Data to the Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to, Patient or Client Data relating to the following categories of data subjects:
- your Personnel who are natural persons
- your patients who are natural persons.
Type of Patient or Client Data
You may submit Patient or Client Data to the Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to, the following categories of personal data:
- first and last name
- date of birth
- medicare number
- email address
- phone number(s)
- emergency contact
Some of the Patient or Client Data may be categorised as special categories of personal data under the GDPR. Processing of special categories of personal data is prohibited unless the data subject has given explicit consent to the processing of that personal data for one or more specified purposes. As required under the Terms, you are responsible for obtaining all necessary consents to our processing of special categories of data.
LIST OF SUB-PROCESSORS AS AT 9 June 2018