Data Processing Addendum

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.

1. Definitions.

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):

Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data ("EU GDPR"); and/or
the EU GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018; and

"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.

2. Level as Data Processor and Data Controller.

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:

has the sole and exclusive authority to determine the purpose and means of the Processing of Personal Data;
shall comply with the requirements of Data Protection Laws applicable to Data Controllers; and
shall implement the technical and organizational measures set out at Section 2 of Part B of Annex I to this DPA.

Processing Activity. The details of the Processing are set out at Annex IV.

3. Level Responsibilities.

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:

notify Customer of such belief (unless Level is prohibited from doing so by applicable law); and
be entitled to suspend the relevant Processing until Customer confirms in writing that such instructions do not infringe applicable law.

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 Section 1 of 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:

a description of the Incident;
the categories and approximate number of Data Subjects affected;
the categories and number of Personal Data records affected; and
the measures taken or proposed to be taken to address the Incident, including measures to mitigate possible adverse effects of the Incident.

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.

4. Data Transfers.

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:

the C2P SCCs will apply to such transfers from Customer as Data Controller to Level as Data Processor; and
the C2C SCCs will apply to such transfers from Customer as Data Controller to Level as Data Controller, and the C2P SCCs and the C2C SCCs are hereby incorporated by reference into this DPA in respect of such transfers.

SCCs. For the purposes of each of the C2P SCCs and the C2C SCCs:

Customer shall be the Data Exporter and Level shall be the Data Importer;
clause 7 shall not apply;
in clause 11, the optional redress mechanism shall not apply;
in clause 13, the competent supervisory authority shall be determined in accordance with Data Protection Laws;
in clause 17, the governing law shall be the law of Ireland;
in clause 18, any dispute shall be resolved by the courts of Ireland;
Annex I.A is completed by Part A of Annex I to this DPA; and
Annex I.C is completed by Part C of Annex I to this DPA.

C2P SCCs. For the purposes of the C2P SCCs only:

in clause 9(a), the Data Importer has the Data Exporter's general authorisation for the engagement of sub-processors(s) from an agreed list, available on request by emailing legal@level.com. The Data Importer shall specifically inform the Data Exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least fourteen (14) days in advance;
Annex I.B is completed by Section 1 of Part B of Annex I to this DPA; and
Annex II is completed in the form set out at Section 1 of Annex II to this DPA.

C2C SCCs. For the purposes of the C2C SCCs only:

Annex I.B is completed by Section 2 of Part B of Annex I to this DPA; and
Annex II is completed by Section 2 of Annex II to this DPA.

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:

the C2P SCCs (including the UK Addendum) will apply to such transfers from Customer as Data Controller to Level as Data Processor; and
the C2C SCCs (including the UK Addendum) will apply to such transfers from Customer as Data Controller to Level as Data Controller, and the C2P SCCs and the C2C SCCs (each as amended by the UK Addendum) are hereby incorporated by reference into this DPA in respect of such transfers.

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).

5. Sub-processors.

Level Sub-processors. Customer provides a general authorisation 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 fulfil 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:

Level notifies Customer in advance of any such replacement or appointment; and
Level complies with the requirements of this Section 5 in respect of such sub-processors.

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.

6. Liability.

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: December 9, 2021

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Annex I

A. List of parties.

Data Exporter:

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

Data Importer:

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

B. Description of Transfer.

Section 1: Controller-to-processor transfers

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.

(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 specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.): 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:

Communication to members (app notifications, email)
Card issuing and fulfillment
Transaction processing
Cloud services vendors to run Level services
Insurance providers

Section 2: Controller-to-controller transfers

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.

Cloud services vendors to run Level services

C. Competent Supervisory Authority.

Identify the competent supervisory authority/ies in accordance with Clause 13: The competent supervisory authority will be determined in accordance with the EU GDPR.

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Annex II

Technical & Organizational Measures

These controls apply to both Controller-to-Controller and Controller-to-Processor transfers.

Measures of pseudonymization and encryption of personal data
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
Processes for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures in order to ensure the security of the processing
Measures for user identification and authorization
Measures for the protection of data during transmission
Measures for the protection of data during storage
Measures for ensuring physical security of locations at which personal data are processed
Measures for ensuring events logging and auditing
Measures for ensuring system configuration, including default configuration
Measures for internal IT and IT security governance and management
Measures for certification/assurance of processes and products
Measures for ensuring data minimization
Measures for ensuring data quality
Measures for ensuring limited data retention Measures for ensuring accountability
Measures for allowing data portability
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident

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Annex III

UK Addendum to the EU Commission Standard Contractual Clauses

Date of this Addendum. This Addendum is effective from the same date as the Clauses.

Background. The Information Commissioner considers this Addendum provides appropriate safeguards for the purposes of transfers of personal data to a third country or an international organization in reliance on Article 46 of the UK GDPR and, with respect to data transfers from controllers to processors and/or processors to processors.

Interpretation of this Addendum.

‍Where this Addendum uses terms that are defined in the Annex those terms shall have the same meaning as in the Annex. In addition, the following terms have the following meanings:

This Addendum: This Addendum to the Clauses
The Annex: The C2P SCCs or the C2C SCCs (as applicable)
UK Data Protection Laws: All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
UK GDPR: The United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
UK: The United Kingdom of Great Britain and Northern Ireland

This Addendum shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfills the intention for it to provide the appropriate safeguards as required by Article 46 UK GDPR.

This Addendum shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.

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. In the event of a conflict or inconsistency between this Addendum and the provisions of the Clauses or other related agreements between the Parties, existing at the time this Addendum is agreed or entered into thereafter, the provisions which provide the most protection to data subjects shall prevail.

Incorporation of the Clauses.

‍This Addendum incorporates the Clauses which are deemed to be amended to the extent necessary so they operate:

for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that transfer; and
to provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR Laws.

The amendments required by the preceding paragraph include (without limitation):

References to the “Clauses” means this Addendum as it incorporates the Clauses
Clause 6 Description of the transfer(s) is replaced with: “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”
References to “Regulation (EU) 2016/679” or “that Regulation” are replaced by “UK Data Protection Laws” and references to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws.
References to Regulation (EU) 2018/1725 are removed.
References to the “Union”, “EU” and “EU Member State” are all replaced with the “UK”
Clause 13(a) and Part C of Annex I are not used; the “competent supervisory authority” is the Information Commissioner;
Clause 17 is replaced to state “These Clauses are governed by the laws of England and Wales”.
Clause 18 is replaced to state: “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”
The footnotes to the Clauses do not form part of the Addendum.

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Annex IV

Details of Processing

Level as Data Processor

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.

Level as Data Controller

Categories of Data Subjects: Customer’s employees and their dependents.

Subject matter, nature and purpose of Processing: ‍

Monitoring, preventing and detecting fraudulent activity related to the Services
Complying with certain regulatory requirements or legal obligations applicable to Level
Analyzing and developing Level’s products and services

Special Categories of Personal Data: Health data

Duration of Processing: In accordance with Level’s data retention policy.

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