This Data Processing Addendum (the "DPA") is agreed to by Level Benefits, Inc., a Delaware corporation (“Level”) and the organization purchasing or receiving services from Level (“Customer,” and together with Level, the “Parties”) and is incorporated into the terms of services agreed between Level and Customer (“Customer Terms”). Capitalized terms used but not defined in this DPA shall have the same meaning as they have in the Customer Terms.
i. In this DPA:
"Data Protection Laws" means the GDPR, the Data Protection Act 2018 and Directive 2002/58/EC and its national implementing legislation;
"C2C SCCs" means Module I (Controller to Controller) of the SCCs completed in accordance with Section 4 of this DPA;
"C2P SCCs" means Module II (Controller to Processor) of the SCCs completed in accordance with Section 4 of this DPA;
"GDPR" means (as applicable):
"SCCs" means the standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 contained in the annex to European Commission decision 2021/914 of 4 June 2021; and
"UK Addendum" means the UK Addendum to the SCCs set out at Annex III to this DPA.
ii. In this DPA the terms "Data Controller", "Data Processor", "Data Subject", "Personal Data" and "Process" are as defined in Data Protection Laws.
Data Processor. Level acts as a Data Processor on behalf of Customer when Level provides the Services to Members on behalf of Customer.
Data Controller. Level acts as a Data Controller when Level monitors, prevents, and detects fraudulent activity related to the Services, complies with certain regulatory requirements or legal obligations applicable to Level, and analyzes and develops Level’s products and services. Where Level acts as a Data Controller, Level:
Processing Activity. The details of the Processing are set out at Annex IV.
Processing Personal Data. Where Level Processes Personal Data on behalf of Customer, Level shall, in respect of such Personal Data:
i. act only on written instructions from Customer, unless Level reasonably believes that such instructions infringe applicable law, in which case Level shall:
ii. ensure that any Level personnel with access to Personal Data are bound by confidentiality obligations in respect of such Personal Data.
iii. implement all necessary and appropriate technical and organizational measures as required under Article 32 of the GDPR (including the measures set out in Annex II).
iv. notify Customer as soon as reasonably practicable of any request made by a Data Subject under Data Protection Laws in relation to or in connection with Personal Data Processed by Level on behalf of Customer and provide reasonable cooperation and assistance to Customer to ensure its compliance with its obligations under the Data Protection Laws in relation to such Data Subject requests.
v. without undue delay upon becoming aware, notify Customer in writing of any actual or suspected accidental, unlawful or unauthorized destruction, loss, alteration, access to or disclosure or Processing of Personal Data ("Incident"), and such notice shall include reasonable details of the Incident including:
Level shall cooperate with any investigation regarding the Incident and take measures reasonably necessary to limit further unauthorized disclosure of or unauthorized Processing of Personal Data in connection with the Incident.
vi. without prejudice to the preceding section, if requested by Customer, Level shall provide reasonable assistance to Customer in ensuring Customer's compliance with its obligations under Articles 32 to 36 of the GDPR, taking into account the nature of processing by, and information available to, Level.
vii. cooperate with Customer and provide such reasonable assistance as Customer requires in relation to any complaints made by Data Subjects or investigations or enquiries made by any data protection authority or other regulator relating to Customer's or Level's obligations under Data Protection Laws.
viii. on termination or expiry of this DPA, at Customer's request, delete or return to Customer all Personal Data processed on behalf of Customer, and delete existing copies of such Personal Data except where necessary to retain such Personal Data strictly for the purposes of compliance with applicable law.
ix. make available to Customer all information reasonably necessary to demonstrate Level's compliance with this DPA; and at least once in any twelve (12) month period, conduct audits of its Personal Data Processing practices and the information technology and information security controls for the facilities and systems used in complying with its obligations under this DPA and on Customer's written request, make available to Customer all such reports to the extent relevant to Level's arrangements for complying with its obligations under this DPA.
Personal Data from the EEA. The parties agree that, in respect of transfers of Personal Data from the EEA (whether direct transfers or onwards transfers) that would be prohibited by Data Protection Laws in the absence of appropriate safeguards:
SCCs. For the purposes of each of the C2P SCCs and the C2C SCCs:
C2P SCCs. For the purposes of the C2P SCCs only:
C2C SCCs. For the purposes of the C2C SCCs only:
Personal Data from the United Kingdom. The parties agree that, in respect of transfers of Personal Data from the United Kingdom (whether direct transfers or onwards transfers) that would be prohibited by Data Protection Laws in the absence of appropriate safeguards:
Safeguards. Where Level transfers Personal Data Processed by Level outside the EEA and/or the United Kingdom pursuant to this DPA, Level shall ensure that such transfer is subject to appropriate safeguards under Data Protection Laws in the EEA and/or the United Kingdom (as applicable).
Level Sub-processors. Customer provides a general authorization to the use of sub-processors engaged by Level in relation to the processing of Personal Data on Customer's behalf. The sub-processors currently engaged by Level are available on request by emailing legal@level.com.
Sub-processor Contract. Level shall execute a written contract with the sub-processor which contains terms for the protection of Personal Data which are no less protective than the terms set out in this DPA. Where any sub-processor fails to fulfill its obligations under such agreement, Level shall remain liable for the performance of such sub-processor's obligations thereunder.
Assignment of Sub-processors. Level may remove, replace or appoint further sub-processors provided that:
Objecting to Sub-processors. Customer may reasonably object to the replacement or appointment of a sub-processor by providing notice to Level in writing detailing the grounds for such objection within thirty (30) days of Level's notification pursuant to the preceding paragraph. Customer and Level will cooperate in good faith to address Customer's objection. If, following such good faith cooperation, Level determines that it wishes to proceed with the replacement or appointment of the relevant sub-processor, Level shall notify Customer of such determination and Customer may terminate the relevant parts of the Services within thirty (30) days.
Limitation of Liability. Notwithstanding Section 7 of the Customer Terms, Level's aggregate liability arising directly or indirectly out of this DPA will not exceed the lesser of (i) an amount equal to two times the Service Administration Fees paid or owed by Customer to Level over the twelve (12) months prior to the relevant claim; and (ii) US $50,000.
Last updated: November 23, 2022
Name: As identified as Customer in the Order Form.
Contact person's name, position and contact details: As identified as Customer in the Order Form.
Activities relevant to the data transferred under these Clauses: Provision of Personal Data of Customer's employees in order to receive the Services.
Signature and date: By transferring Personal Data from the EEA or the UK (as applicable) to the Data Importer, the Data Exporter will be deemed to have signed this Annex I.
Role (controller/processor): Controller
Name: Level Benefits, Inc.
Address: P.O. Box 1461, New York, NY 10013
Contact person's name, position and contact details: Amy Pitelka, Head of Legal, legal@level.com
Activities relevant to the data transferred under these Clauses: Processing Personal Data of Customer's employees in order to provide the Services.
Signature and date: By receiving Personal Data from the EEA or the UK (as applicable) from the Data Exporter, the Data Importer will be deemed to have signed this Annex I.
Role (controller/processor): Processor and Controller
Categories of data subjects whose personal data is transferred: As described in Annex IV.
Categories of personal data transferred: As described in Annex IV.
Sensitive data transferred (if applicable): Transaction history may incidentally capture health data and may be provided by Level to the Employer at its request.
Restrictions and safeguards applied to sensitive data: As described in Annex II.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Continuous
Nature of the processing: As described in Annex IV.
Purpose(s) of the data transfer and further processing: As described in Annex IV.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: Retention periods will be determined in accordance with Level's data retention policy and regulatory requirements.
For transfers to (sub-)processors, also specify subject matter, nature and duration of the processing: A list of subprocessors are available on request. Level uses subprocessors in these general categories:
Categories of data subjects whose personal data is transferred: As described in Annex IV.
Categories of personal data transferred: See B Section 1.
Sensitive data transferred (if applicable): See B Section 1.
(For sensitive data only: 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.): See B Section 1.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): See B Section 1.
Nature of the processing: As described in Annex IV.
Purpose(s) of the data transfer and further processing: As described in Annex IV.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: See B Section 1.
For transfers to (sub-)processors, also specify subject matter, nature and duration of the processing: A list of subprocessors are available on request. Level uses subprocessors in these general categories:
Identify the competent supervisory authority/ies in accordance with Clause 13: The competent supervisory authority will be determined in accordance with the EU GDPR.
Level’s technical and organizational measures, including technical and organizational measures to ensure the security of the data are available Level's Security Annex at level.com/legal/security-annex.
This Addendum has been issued by the Information Commissioner (UK) for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Parties.
Start Date: The first day of the first Term.
Exporter (who sends the Restricted Transfer)
Importer (who receives the Restricted Transfer)
Selected SCCs, Modules and Selected Clauses.
Addendum EU SCCs: The version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information:
Appendix Information.
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
Ending this Addendum when the Approved Addendum Changes.
Which Parties may end this Addendum as set out in Section 19: Importer, Exporter
Entering into this Addendum.
Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.
Interpretation of this Addendum.
Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:
This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfills the Parties’ obligation to provide the Appropriate Safeguards.
If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re- enacted and/or replaced after this Addendum has been entered into.
Hierarchy.
Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.
Incorporation of and changes to the EU SCCs.
This Addendum incorporates the Clauses which are deemed to be amended to the extent necessary so that:
Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
Amendments to this Addendum.
The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
From time to time, the ICO may issue a revised Approved Addendum which:
The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
If the ICO issues a revised Approved Addendum under Section 18, if any Party “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.
Categories of Data Subjects: Customer’s employees and their dependents.
Subject matter, nature and purpose of Processing: Provision of the Services to Members on behalf of Customer.
Types of Personal Data: Personal data provided by Customer about its Members, including, where applicable, name, address, date of birth, gender, marital status, tax identification number, transaction history.
Special Categories of Personal Data: Health data
Duration of Processing: In accordance with Level’s data retention policy.
Categories of Data Subjects: Customer’s employees and their dependents.
Subject matter, nature and purpose of Processing:
Types of Personal Data: Personal data provided by Customer about its Members, including, where applicable, name, address, date of birth, gender, marital status, tax identification number, transaction history.
Special Categories of Personal Data: Health data
Duration of Processing: In accordance with Level’s data retention policy.