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 in Annex II 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 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 authorization 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 in 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 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 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:

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: November 23, 2022

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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 specialized 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.

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

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.

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Annex III

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (UK Addendum)

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.

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Part 1

‍Parties.

Start Date: The first day of the first Term.

Exporter (who sends the Restricted Transfer)

Full legal name: As identified as Customer in the Order Form.
Main address (if a company registered address): As identified in the Order Form.‍
Official registration number (if any) (company number or similar identifier): As registered with the state of incorporation.
Key contact full name (optional): as identified in the Order Form.
Key contact job title: as identified in the Order Form. ‍
Key contact details including email: as identified in the Order Form.

Importer (who receives the Restricted Transfer)

Full legal name: Level Benefits, Inc.
Main address (if a company registered address): P.O. Box 1461, New York, NY 10013‍
Official registration number (if any) (company number or similar identifier): 6817150
Key contact full name (optional): Amy Pitelka
Key contact job title: Head of Legal‍
Key contact details including email: legal@level.com

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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:

Date: the first day of the first Term.
Reference (if any): the SCCs entered into pursuant to section 4.a of the Data Processing Addendum

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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:

Annex I.A: List of Parties
Annex I.B: Description of Transfer
Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data

Ending this Addendum when the Approved Addendum Changes.

Which Parties may end this Addendum as set out in Section 19: Importer, Exporter

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Part 2: Mandatory Clauses

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.

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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: This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.
Addendum EU SCCs: The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out above, including the Appendix Information.
Appendix Information: As set out above.
Appropriate Safeguards: The standard of protection over the Personal Data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
Approved Addendum: The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.
Approved EU SCCs: The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
ICO: The Information Commissioner.
Restricted Transfer: A transfer which is covered by Chapter V of the UK GDPR.
UK: The United Kingdom of Great Britain and Northern Ireland.
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: As defined in section 3 of the Data Protection Act 2018.

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.

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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.

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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:

together they operate for data 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 data transfer, and they provide Appropriate Safeguards for those data transfers;
Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.

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:

References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
In Clause 2, delete the words:“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;
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.”;
Clause 8.7(i) of Module 1 is replaced with: “it is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
Clause 8.8(i) of Modules 2 and 3 is replaced with: “the onward transfer is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;
”References to “Regulation (EU) 2016/679”, “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 (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. 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 “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
Clause 13(a) and Part C of Annex I are not used;
The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
In Clause 16(e), subsection (i) is replaced with: “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
Clause 17 is replaced with: “These Clauses are governed by the laws of England and Wales.”;
Clause 18 is replaced with: “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.”; and
The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

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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:

makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
reflects changes to UK Data Protection Laws;

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:

its direct costs of performing its obligations under the Addendum; and/or
its risk under the Addendum,

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.

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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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