Privacy Annex for FitMetrix Services

Last Updated: March 5, 2019

This Privacy Annex (“Annex”) is an annex to the overhead agreement which refers to this Annex as being applicable between the Parties (“Agreement”). If there are any conflicts or inconsistencies between thisAnnex and the Agreement, the provisions of this Annex prevail. To the extent that FITMETRIX acts as a Processor to You as a Controller, in relation to Your Data originating from the EEA, the following terms apply.

1.            Compliance with Your instructions

FITMETRIX may only process Personal Data in connection with its obligations and rights under the Agreement, or as otherwise instructed by You or required by applicable law. The subject-matter, duration, nature and purpose of the Processing, types of Personal Data and categories of individuals will be the same as for the relevant Services to which the Processing relates. FITMETRIX may aggregate or anonymize Your Data for the purpose of product or service improvements, data science and reporting.

2.            Security

FITMETRIX will implement commercially reasonable technical and organizational measures for the Services that are designed to protect Personal Data against accidental or unlawful destruction, loss, alteration, disclosure or access. If you have questions about what security measures FITMETRIX has implemented that are not answered by Appendix 2, please reach out to [email protected] . FITMETRIX will notify You of a Personal Data Breach as required under applicable law.

3.            Audits

Upon Your request, up to once a year, FITMETRIX will provide to You a copy of a self-certification confirming that FITMETRIX complies with the material requirements set out in this Annex.  Such self-certification will be FITMETRIX’s Confidential Information. The Parties acknowledge and agree that such self-certification, where applicable, will satisfy clause 5(f) of the Controller to Processor Standard Contractual Clauses and Article 28.3(h) of the GDPR.

4.            Assistance

FITMETRIX will provide You reasonable assistance to allow You, at Your sole costs, to demonstrate Your compliance with obligations pursuant to this Annex in respect of notifying Personal Data Breaches to a Supervisory Authority and individuals and conducting Data Protection Impact Assessments.

5.            Individuals

FITMETRIX will notify You of requests received directly from individuals in relation to the Processing of their Personal Data, unless prohibited from doing so under applicable law. FITMETRIX may, but is not required to, acknowledge receipt of such request and ask additional questions to determine the identity and nature of the request, or may refer such request and individual to You directly, and provide You with reasonable assistance in meeting the request in a timely manner.

 

You are solely responsible for providing any necessary notices to, and obtaining any necessary consents from, individuals with respect to the Processing of Personal Data pursuant to the Agreement and this Annex.

6.            Sub-Processors

You agree that FITMETRIX may use Sub-Processors to assist FITMETRIX in Processing Personal Data for the performance of the Services, provided that:

 

                   (a)           FITMETRIX imposes no less stringent duties on such Sub-Processors regarding security and confidentiality of Personal Data as those set out in this Annex.

                   (b)           FITMETRIX remains responsible to You for the performance of the relevant Services by the Sub-Processor, and

                   (c)           FITMETRIX maintains a list of such Sub-Processors in Section 21 of its Privacy Policy. In order to receive notice of any change to this list, you must request to subscribe to the Sub-Processor Notification List by clicking here. You accept that Your failure to join the list may result in missing the deadline to object to new Sub-Processors. You may within five (5) business days of receiving a notice, object to the involvement of such new Sub-Processor on objective justifiable grounds related to the ability of such Sub-Processor to protect the Personal Data or comply with data protection requirements applicable to Sub-Processor. In the event that the objection is not unreasonable, the Parties will work together in good faith to find a solution to address such objection, including but not limited to reviewing additional documentation supporting the Sub-Processors’ compliance.

7.            Transfers

To the extent that the Services involve a transfer of Personal Data originating from the EEA, the Controller to Processor Standard Contractual Clauses, which are herein incorporated by reference, will apply and FITMETRIX will comply, as the Processor, with the obligations therein to facilitate such transfers. The Appendices of such Controller to Processor Standard Contractual Clauses (the “Appendices”) are appended to this Annex and are incorporated herein by reference. Your click-through acceptance of the Agreement constitutes your signature to and acceptance of the Controller to Processor Standard Contractual Clauses and the Appendices.

 

Notwithstanding the foregoing, FITMETRIX may exchange the Controller to Processor Standard Contractual Clauses for any other EEA-approved transfer mechanism in its sole discretion. Please consult our current Privacy Policy for information regarding our data handling practices and what transfer mechanisms are being used.

8.            Return and Deletion of Personal Data

Upon termination or expiration of the Services, FITMETRIX will make available to You Personal Data maintained by FITMETRIX for a duration of three (3) months to allow You to retrieve where reasonably technically feasible your Personal Data in a commonly used format set out by FITMETRIX. After such period, FITMETRIX will destroy or otherwise render inaccessible, at our discretion, such Personal Data from the production environment of the Services, except as may be required by law. Actions set out in this section are at Your sole cost.

9.            Changes

We may make changes to this Annex, including the Appendices, from time to time as necessary to reflect changes in our business or legal and regulatory requirements. Changes we make will become effective when we publish a modified version of the Annex on our websites. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any material changes, you must stop using the Services, and you can terminate your account by emailing [email protected].

10.         Key definitions.

Unless otherwise defined below, capitalized terms have the meaning set out in the Agreement or the Privacy Policy.

10.1 “Controller”, “ Personal Data Breach ”, “ Data Protection Impact Assessment ”, “Process/Processing”, “Processor”, and “Supervisory Authority” have the meaning set out in the GDPR.

10.2 “Controller to Processor Standard Contractual Clauses” means Standard Contractual Clauses adopted by the EU Commission pursuant to its decision C(2010)593 located at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32010D0087 (as updated or replaced from time to time).

10.3 “EEA” means all member states of the European Union, Norway, Iceland, Liechtenstein and, for the purposes of the Annex, Switzerland;

10.4 "GDPR" means 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).

10.5 “Parties” means You and FITMETRIX.

10.6 “Personal Data” means Your Data to the extent that it relates to an identified or identifiable natural person.

10.7 “Sub-Processors” means third party organizations that FITMETRIX engages for the Processing of the Personal Data and which do not act under FITMETRIX’s direct authority.



Appendix 1 to the Controller to Processor Standard Contractual Clauses (description of transfer)

 

This Appendix forms part of the Controller to Processor Standard Contractual Clauses .

 

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

 

Data Exporter and Data Importer

You transfer, and FITMETRIX receives, Personal Data in relation to the supply of Services as set out in the Agreement.

 

Data subjects

The personal data transferred concern the following categories of data subjects:

Employees, including temporary and prospective employees, , existing and prospective (customers’) customers (including gyms, fitness studios, practitioners), consumers, visitors or registrants at offices, web sites and/or events, employees of corporate business associates,and other categories as relevant to the Services.

 

Categories of data

Data as necessary for the Services, including contact and other personal details (name, address, telephone or mobile number, fax number, email, education and background, etc.), billing and financial details, electronic data (including IP address, application, device, Internet, network and browser data), sales and marketing data (including prospects,  membership and mailing list participation), advantages, benefits and rewards, demographic or geographic information, analysis and business intelligence, statistics and use trends, service account data, training and technical support data, know-how, app features and metrics (including workout attendance, body measurements, biometrics and performance) and other data as relevant to the Services.

 

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

Data regarding biometric and performance data and other sensitive information as relevant to the Services.

 

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

Processing operations are limited to the extent necessary to provide the Services as specified under the Agreement.






Appendix 2 to the Controller to Processor Standard Contractual Clauses



This Appendix forms part of the Clauses and must be completed and signed by the parties.

  1. Physical Security Controls

Processor must implement appropriate physical security controls within its premises to prevent unauthorized persons from gaining access to data and systems.For this, Processor has implemented the following measures:

Identification card for all members of staff

Manned reception area in all buildings

Visitor access procedure

Locked entry gates at all external doors

Data center access limited to authorized personnel

Entry security systems 24x7 (e.g., smart card reader, code locks)

Locks for filing cabinets containing sensitive data

 

  1. Access Control

Processor must prevent unauthorized access to data processing systems.Processor has implemented the following measures for electronic access control:

Access control system (User ID and Strong Password)

Encryption of data transmitted via unsecure networks

Firewalls

URL Filtering

Penetration testing

Automated vulnerability scans

Documented Security Incident Response Plan

 

  1. Authorization Process

Processor must ensure that authorized members of staff have access only to the data which they require in the course of their work duties and to which they have a right of access, and must prevent any unauthorized access outside of the granted permissions. Processor has implemented the following measures:

Documented authorization process to grant only the minimum access required for each member of staff to perform his/her work duties

Regular controls of authorizations granted and change process to reflect termination of employment, contract, agreement, or change of roles

Privileged access limited to essential administration personnel

Authentication process (User ID and Strong Password)

Audit logs for servers, applications and network devices

Secured interfaces

Disk management

Encryption of data transmitted via unsecure networks

 

  1. Transmission Control

Processor shall ensure that personal data are protected against any unauthorized reading, modification, copying, or removal during electronic transmission or transport.  Measures must be in place to verify to which recipients transfers are envisaged. Processor has implemented the following measures during transport, transfer, and transmission or storage on data carriers:

Encryption of data transmitted via unsecure networks

Encryption of storage media in transport

Electronic signatures

 

  1. Input Control

Processor shall ensure that it is possible to verify what personal data were entered into processing systems, modified, or removed, at what time, and by whom.Processor has implemented the following to allow for retrospective review of whether and by whom personal data are entered, modified, or removed: 

Authentication process (User ID and Strong Password)

Documented Incident Response Plan

 

  1. External Parties

Processor shall ensure that, in the case of sub-contracting personal data will be processed only in accordance with the instructions of the Controller:

Written contractual arrangements/instructions with all sub-contractors

Access controls to restrict access to what is required to perform the specific services

 

  1. Availability Control

Processor shall take measures to protect personal data against accidental loss or destruction.  Processor has implemented the following measures for availability control:

Daily automated Back-up

Redundant power feeds

Temperature and humidity controls and monitoring

Encryption of data transmitted via unsecure networks

Antivirus/firewall

 

  1. Data Segregation

The data of the Controller are to be separated from the data of other customers and the Processor.  Personal data collected for different purposes must be processed separately. Measures taken by Processor for separation control are:

Customer data and systems are separated from internal systems

Dedicated server

Separation of production and test systems

Defined roles and responsibilities including appropriate segregation of duties amongst member of staff