Data Processing Agreement
SMSNXT
This Data Processing Agreement ("DPA") between smsnxt and Company forms part of the Agreement and is effective as of September November-20-204.
1. Definitions
All capitalized terms not defined in this DPA will have the meanings set forth in the Agreement. Terms used but not defined in this DPA, such as “controller,” “data subject,” “personal data,” “processing,” and “processor” will have the same meaning as set forth in the EU Data Protection Law.
"Affiliate" means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
"Agreement" means smsnxt’s Terms of Use, which govern the provision of the Services to Company.
"Company Data" means any personal data that smsnxt processes on behalf of Company as a processor in the course of providing Services, as more particularly described in this DPA.
“Consent” means a Data Subject’s freely given, specific, informed and unambiguous indication of the Data Subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the Processing of Personal Data relating to him or her.
“Controller” means the entity that determines the purposes and means of the Processing of Personal Data. “Controller” includes equivalent terms in other Data Protection Law, such as the CCPA-defined term “Business” or “Third Party,” as context requires.
“Data Protection Law” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including Regulation 2016/679 (General Data Protection Regulation) (“GDPR”),
“Data Subject” means an identified or identifiable natural person.
“De-identified Data” means a data set that does not contain any Personal Data. Aggregated data is De-identified Data. To “De-identify” means to create De-identified Data from Personal Data.
"EEA" means the European Economic Area, United Kingdom and Switzerland.
“Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a Data Subject. “Personal Data” includes equivalent terms in Data Protection Law, such as the CCPA-defined term “Personal Information,” as context requires.
“Personal Data Breach” means a breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Company Data.
"Privacy Shield" means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017 respectively.
"Privacy Shield Principles" means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).
“Process” or “Processing” any operation or set of operations that a party performs on Personal Data, including collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“Processor” means an entity that processes Personal Data on behalf of another entity. “Processor” includes equivalent terms in other Data Protection Law, such as the CCPA-defined term “Service Provider,” as context requires.
"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Company Data.
“Sensitive Data” means the following types and categories of data: data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; genetic data; biometric data; data concerning health, including protected health information governed by the Health Insurance Portability and Accountability Act; data concerning a natural person’s sex life or sexual orientation; government identification numbers (e.g., SSNs, driver’s license); payment card information; nonpublic personal information governed by the Gramm Leach Bliley Act; an unencrypted identifier in combination with a password or other access code that would permit access to a data subject’s account; and precise geolocation.
"Services" means any product or service provided by smsnxt to Company pursuant to the Agreement.
“Standard Contractual Clauses” means the European Union standard contractual clauses for international transfers from the European Economic Area to third countries, Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
“Subprocessors” means the other processors that are used by smsnxt to process Personal Data.
2. Relationship with the Agreement
2.1 The parties agree that the DPA shall replace any existing data processing agreement the parties may have previously entered into in connection with the Services.
2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
2.4 Company further agrees that any regulatory penalties incurred by smsnxt in relation to the Company Data that arise as a result of, or in connection with, Company’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce Smsnxt’s liability under the Agreement as if it were liability to the Company under the Agreement.
2.5 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.6 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3. Scope and Applicability of this DPA
3.1 This DPA applies where and only to the extent that smsnxt processes Company Data that originates from the EEA or that is otherwise subject to EU Data Protection Law on behalf of Company as a processor in the course of providing Services pursuant to the Agreement.
4. Roles and Scope of Processing
4.1 Role of the Parties. As between smsnxt and Company, Company is controller of Company Data, and smsnxt shall process Company Data only as a processor acting on behalf of Company.
4.2 Company Processing of Company Data. Company agrees that (i) it shall comply with its obligations as a controller under Data Protection Laws in respect of its processing of Company Data and any processing instructions it issues to smsnxt; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for smsnxt to process Company Data and provide the Services pursuant to the Agreement and this DPA.
4.3 smsnxt Processing of Company Data. smsnxt Process Company Data only for the purposes described in this DPA and only in accordance with Company’s documented, lawful instructions. The parties agree that this DPA and the Agreement set out the Company’s complete and final instructions to Smsnxt in relation to the Processing of Company Data under the Agreement and Processing outside the scope of these instructions (if any) will require prior written agreement between Company and smsnxt. smsnxt is prohibited from: (i) Selling Company Data; (ii) retaining, using, or disclosing Company Data for any purpose other than for the specific purpose of performing the Services specified in the Agreement, including retaining, using, or disclosing the Company Data for a commercial purpose other than providing the Services specified in the Agreement; or (iii) retaining, using, or disclosing the Company Data outside of the direct business relationship between Company and smsnxt. smsnxt will promptly inform Company if following Company’s instructions would result in a violation of Data Protection Law or where smsnxt must disclose Company Data in response to a legal obligation, unless the legal obligation prohibits smsnxt from making such disclosure. Notwithstanding anything to the contrary in this Section, smsnxt may Process Company Data as necessary to detect data security incidents or protect against fraudulent or illegal activity and to build or improve the quality of its products and services, provided that in the course of these activities smsnxt will not (i) permit any third party (other than smsnxt’s service providers or except as instructed by Company) to access Company Data or (ii) use the Company Data to modify or add to Personal Information it collected from a source that is not Company.
4.4 Details of Data Processing
Subject matter: The subject matter of the data processing under this DPA is the Company Data.
Duration: As between Smsnxt and Company, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Company and the performance of Smsnxt's obligations under the Agreement (including this DPA) or as otherwise agreed by the parties
Nature of the processing: Smsnxt provides web application text messaging, analytics technology and other related services, as described in the Agreement.
Categories of data subjects: Any individual accessing and/or using the Services through the Company's account ("Users"); and any individual: (i) whose information is stored on or collected via the Services, or (ii) to whom Users send messages or otherwise engage or communicate with via the Services (collectively, "End Users").
Types of Company Data:
Company and Users: identification data potentially including name, phone number, and email address.
End Users: identification content includes name, phone number, email address, company name, website, and other information provided to Company and Users by End Users.
4.5 Description of the Processing and Subprocessors
Processing Activity: Company discloses Personal Data to Smsnxt in connection with the Services.
Status of the Parties: Company is a Controller. Smsnxt is a Processor.
Categories of Personal Data Processed: Any Personal Data Company discloses to Smsnxt.
Categories of Sensitive Data Processed: None
Applicable SCCs Module: Module 2 Module 3, if Company acts as a Processor to another Controller.
Processing Activity: End Users disclose Personal Data to Company using Smsnxt service
Status of the Parties: Smsnxt is a Processor. Company is a Controller.
Categories of Personal Data Processed: Any Personal Data End User discloses to Company.
Categories of Sensitive Data Processed: None
Applicable SCCs Module: Module 2
Processing Activity: Smsnxt provides professional services to Company.
Status of the Parties: Smsnxt is a Controller. Company is a Controller.
Categories of Personal Data Processed: Name, email address, user ID.
Categories of Sensitive Data Processed: None
Applicable SCCs Module: Module 1
Processing Activity: Smsnxt creates address book data for Company’s End Users and collects usage information from them.
Status of the Parties: Smsnxt is a Controller. Company is a Controller.
Categories of Personal Data Processed: Phone number, name.
Categories of Sensitive Data Processed: None
Applicable SCCs Module: Module 1
Processing Activity: Company contacts Smsnxt for support.
Status of the Parties: Company is a Controller. Smsnxt is a Controller.
Categories of Personal Data Processed: Name, email address, user ID.
Categories of Sensitive Data Processed: None
Applicable SCCs Module: Module 1
Processing Activity: The parties Process Personal Data of their representatives to, e.g., (a) administer and provide the Services; (b) manage invoices; (c) manage the Agreement and resolve any disputes relating to it; (d) respond and/or raise general queries; and (e) comply with their respective regulatory obligations.
Status of the Parties: Smsnxt is a Controller. Company is a Controller.
Categories of Personal Data Processed: Name, title, and contact information.
Categories of Sensitive Data Processed: None
Applicable SCCs Module: Module 1
4.6 Information for International Transfers
Frequency of Transfer: Continuous for all Personal Data.
Retention Periods
Smsnxt retains Personal Data it collects as a Controller for as long as Smsnxt has a business purpose for it or for the longest time allowable by applicable law.
Smsnxt retains Personal Data it collects or receives from Company as a Processor for the duration of the Agreement and consistent with its obligations in this DPA.
Standard Contractual Clauses
Clause 7: The parties do not permit docking.
Clause 9, Module 2(a): The parties select Option 2. The time period is 5 days.
Clause 9, Module 3(a): The parties select Option 2. The time period is 5 days.
Clause 11(a): The parties do not select the independent dispute resolution option.
Clause 17: The parties agree that the governing jurisdiction is the Member State in which the data exporter is established.
Clause 18: For Modules 1-3, the parties agree that the forum is the Member State in which the data exporter is established.
Annex I(A): The data exporter is Company. The data importer is Smsnxt. Contact details for the parties are part of the Agreement.
Annex I(B): The parties agree that Schedule 1 describes the transfer.
Annex I(C): The competent supervisory authority is the supervisory authority that has primary jurisdiction over the data exporter.
Annex II: The parties agree that Schedule 2 describes the technical and organizational measures applicable to the transfer.
Localizing the Standard Contractual Clauses
For Switzerland
The parties adopt the GDPR standard for all data transfers.
Clause 13 and Annex I(C): The competent authorities under Clause 13, and in Annex I(C), are the Federal Data Protection and Information Commissioner and, concurrently, the EEA member state authority identified above.
Clause 17: The parties agree that the governing jurisdiction is the Member State in which the data exporter is established.
Clause 18: For Modules 1-3, the parties agree that the forum is the Member State in which the data exporter is established. The parties agree to interpret the Standard Contractual Clauses so that Data Subjects in Switzerland are able to sue for their rights in Switzerland in accordance with Clause 18(c).
The parties agree to interpret the Standard Contractual Clauses so that “Data Subjects” includes information about Swiss legal entities until the revised Federal Act on Data Protection becomes operative.
For the United Kingdom
The parties agree that the Standard Contractual Clauses are deemed amended to the extent necessary that they operate for transfers from the United Kingdom to a Third Country and provide appropriate safeguards for transfers according to Article 46 of the United Kingdom General Data Protection Regulation (“UK GDPR”). Such amendments include changing references to the GDPR to the UK GDPR and changing references to EU Member States to the United Kingdom.
Clause 17: The parties agree that the governing jurisdiction is the United Kingdom.
Clause 18: For Modules 1-3, the parties agree that the forum is the courts of England and Wales. The parties agree that Data Subjects may bring legal proceedings against either party in the courts of any country in the United Kingdom.
5. Subprocessing
5.1 Authorized Subprocessors. Company agrees that Smsnxt may engage Subprocessors to process Company Data on Company's behalf. The Subprocessors currently engaged by Smsnxt and authorized by Company are listed in Attachment A.
5.2 Subprocessor Obligations. Smsnxt shall obtain Subprocessor data protection terms that require the Subprocessor to protect the Company Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA.
6. Security
6.1 Security Measures. Smsnxt shall implement and maintain appropriate technical and organizational security measures to protect Company Data from Security Incidents and to preserve the confidentiality, integrity, and availability of the Company Data, in accordance with Smsnxt’s security standards.
6.2 Updates to Security Measures. Company is responsible for reviewing the information made available by Smsnxt relating to data security and making an independent determination as to whether the Services meet Company’s requirements and legal obligations under Data Protection Laws. Company acknowledges that the Security Measures are subject to technical progress and development and that Smsnxt may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Company.
6.3 Company Responsibilities. Notwithstanding the above, Company agrees that except as provided by this DPA, Company is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Company Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Company Data uploaded to the Services.
7. Compliance Verification
7.1 Upon reasonable request, Smsnxt will verify its compliance with this DPA, provided that Company shall not exercise this right more than once per year.
8. International Transfers
8.1 Some jurisdictions require that an entity transferring Personal Data to, or accessing Personal Data from, a foreign jurisdiction take extra measures to ensure that the Personal Data has special protections (an “International Data Transfer Mechanism”). The parties will comply with any International Data Transfer Mechanism that may be required by applicable Data Protection Law, including the Standard Contractual Clauses. Before either party transfers to the other party or permits the other party to access Personal Data located in a jurisdiction that requires an International Data Transfer Mechanism, the transferring party will notify the other party of the relevant requirement and the parties will work together in good faith to fulfill the requirements of that International Data Transfer Mechanism.
8.2 If the International Data Transfer Mechanism on which the parties rely is invalidated or superseded, the parties will work together in good faith to find a suitable alternative.
8.3 Data center locations. Smsnxt may transfer and process Company Data anywhere in the world where Smsnxt, its Affiliates or its Subprocessors maintain data processing operations. Smsnxt shall at all times provide an adequate level of protection for the Company Data collected, transferred, processed, or retained in accordance with the requirements of Data Protection Laws.
8.4 Privacy Shield and Standard Contractual Clauses. To the extent that Smsnxt processes any Company Data protected by EU Data Protection Law under the Agreement and/or that originates from the EEA, to the United States, a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for personal data, the parties acknowledge that Smsnxt shall be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Company Data by virtue of having self-certified its compliance with Privacy Shield and the Standard Contractual Clauses. Smsnxt agrees to protect such personal data in accordance with the requirements of the Privacy Shield Principles and the Standard Contractual Clauses. If Smsnxt is unable to comply with this requirement, Smsnxt shall inform Company.
8.5 Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8.4 shall not apply if and to the extent that Smsnxt adopts an alternative data export solution with Company for the lawful transfer of personal data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which personal data is transferred).
9. Additional Security
9.1 Confidentiality of processing. Smsnxt shall ensure that any person who is authorized by Smsnxt to process Company Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
9.2 Security Incident Response. Upon becoming aware of a Security Incident, Smsnxt shall notify Company without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Company.
10. Changes to DPA and Subprocessors
10.1 Changes to DPA. Smsnxt may be required to update this DPA in order to comply with applicable law, and in such case Smsnxt will provide reasonable notice of any such updates.
10.1 Changes to Subprocessors. Smsnxt shall (i) provide an up-to-date list of the Subprocessors it has appointed upon written request from Company; and (ii) notify Company (for which email shall suffice) if it adds Subprocessors at least 10 days prior to any such changes. Company may object in writing to Smsnxt’s appointment of a new Subprocessor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such an event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Company may suspend or terminate the Agreement (without prejudice to any fees incurred by Company prior to suspension or termination).
11. Return or Deletion of Data
11.1 Upon termination or expiration of the Agreement, Smsnxt shall (at Company's election) delete (after providing Company the ability to download, pursuant to the Agreement) all Company Data (including copies) in its possession or control, save that this requirement shall not apply to the extent Smsnxt is required by applicable law to retain some or all of the Company Data, which Company Data Smsnxt shall securely isolate and protect from any further processing, except to the extent required by applicable law.
12. Cooperation
12.1 The Services provide Company with a number of controls that Company may use to retrieve, correct, delete or restrict Company Data, which Company may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Company is unable to independently access the relevant Company Data within the Services, Smsnxt shall (at Company's expense) provide reasonable cooperation to assist Company to respond to any requests from individuals or applicable data protection authorities relating to the processing of personal data under the Agreement. In the event that any such request is made directly to Smsnxt, Smsnxt shall not respond to such communication directly without Company's prior authorization, unless legally compelled to do so. If Smsnxt is required to respond to such a request, Smsnxt shall promptly notify Company and provide it with a copy of the request unless legally prohibited from doing so.
12.2 If a law enforcement agency sends Smsnxt a demand for Company Data (for example, through a subpoena or court order), Smsnxt shall attempt to redirect the law enforcement agency to request that data directly from Company. As part of this effort, Smsnxt may provide Company’s basic contact information to the law enforcement agency. If compelled to disclose Company Data to a law enforcement agency, then Smsnxt shall give Company reasonable notice of the demand to allow Company to seek a protective order or other appropriate remedy unless Smsnxt is legally prohibited from doing so.
12.3 To the extent Smsnxt is required under EU Data Protection Law, Smsnxt shall (at Company's expense) provide reasonably requested information regarding the Services to enable the Company to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.