Data Processing Addendum

                                                                                                                            RECITALS

This Data Processing Addendum (the “Data Processing Addendum”), dated as of the execution date of the Subscription Order Form (the “Effective Date”) by and between the Client listed in the Subscription Order Form (“Client”), and Direqt Inc. (“Direqt”). This Data Processing Addendum refers to Client and Direqt individually as a “Party” and collectively as the “Parties.

WHEREAS, Client and Direqt have entered into a separate master agreement and Subscription Order Form for Services (as defined below), as may have been amended, amended and restated, supplemented, or otherwise modified from time to time in accordance with its provisions (the “Services Agreements”), which define Direqt’s obligations with respect to the provision of Services to Client;

WHEREAS, Direqt may process Personal Data as part of delivering the Services; and

WHEREAS, it is therefore necessary for the Parties to enter into an appropriate data processing agreement which reflects the roles of the Parties and their obligations under applicable Data Privacy Law and the Parties wish to enter into such an agreement.

                                                                                                                         AGREEMENT

NOW, THEREFORE
, in consideration of the premises set out above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.

1. DEFINITIONS. Capitalized terms used and not defined in this Data Processing Addendum have the respective meanings assigned to them in the Services Agreement.

Controller” has the meaning set forth in the applicable Data Privacy Law.

Client Data” shall mean any Personal Data that Direqt processes as a Processor in providing the Services to a Client pursuant to this Services Agreement.

Data Privacy Law” means EU General Data Protection Regulation 2016/679 (“GDPR”), the implementing acts of the foregoing by the Member States and/or any other applicable law or regulation relating to the protection of Personal Data, including but not limited to the United Kingdom (UK) GDPR tailored by the UK Data Protection Act 2018.

Data Subject” has the meaning set forth in the applicable Data Privacy Law.“Member State” means a member state of the European Union and/or the European Economic         
Area, as such group may be modified from time to time, Switzerland, and the United Kingdom.

Personal Data” has the meaning set forth in the applicable Data Privacy Law.

Process” and “Processing” has the meaning set forth in the applicable Data Privacy Law.

Processor” has the meaning set forth in the applicable Data Privacy Law.

Services” means the provision of services or other work products by Direqt as described and set out in the Services Agreement, and such other services as the Parties may agree upon in writing from time to time.

Subprocessor” means any Processor engaged by Direqt to assist with the provision of the Services which involves the processing of Client Data.

Term” is the term of the Services Agreement.

2. RELATIONSHIP WITH SERVICES AGREEMENT. This Data Processing Addendum is an addendum to the Services Agreement. Unless there is any conflict or inconsistency between the provisions in the Services Agreement and this Data Processing Addendum (in which case, to the extent this Data Processing Addendum requires additional, more stringent, or more protective obligations, the provisions of this Data Processing Addendum take precedence), all other provisions of the Services Agreement apply. In case of a conflict or inconsistency between the operative provisions in this Data Processing Addendum and the Standard Contractual Clauses in Attachment 1, if applicable, the Standard Contractual Clauses shall supersede and take precedence.

3. STATUS OF PARTIES. Direqt is the Processor of Client Data and Client is the Controller of Client Data under this Data Processing Addendum. Direqt shall not assume any responsibility for determining the purposes for which Client Data shall be processed.

4. SCOPE OF DATA PROCESSING.

4.1 All Parties shall comply with their applicable obligations under Data Privacy Laws.

4.2 The subject-matter of the data processing to be carried out by Direqt is: Direqt is the developer and host of a Software-as-a-Service text message platform used by Client to facilitate the delivery of messages between Client and mobile subscribers as further outlined in the Services Agreement. 

4.3 The duration of the data processing to be carried out by Direqt shall be for the Term stated in the Services Agreement.

4.4 The nature and purpose of the data processing to be carried out by Direqt is: Direqt is the developer and host of a Software-as-a-Service text messaging platform used by Client to facilitate the delivery of messages between Client and mobile subscribers as further outlined in the Services Agreement. 

4.5 The type of personal data involved in the data processing is: telephone numbers and any personal data contained in the Client Data or content of text messages sent between Data Subjects and Client. 

4.6 The categories of Data Subjects involved in the data processing are: Data Subjects that have opted in to receive messages from Client. 

5.
CONTROLLER OBLIGATIONS.

5.1 Client will only provide Direqt with Client Data that is required for Direqt to perform the Services.

5.2 Client shall only provide instructions to Direqt that comply with Data Privacy Laws and Client represents and warrants that Direqt’s Processing in accordance with Client’s instructions shall not cause Direqt to be in breach of any Data Privacy Laws or Client’s policies and procedures. 

6. PROCESSOR OBLIGATIONS.

6.1 Direqt shall Process Client Data on behalf of Client exclusively and only in accordance with the documented instructions received from Client. Client may provide Direqt with general or specific instructions regarding the data Processing provided as part of the Services. Instructions shall be issued in writing or via e-mail.

6.2 In the event Direqt is required under any Data Privacy Law to process Client Data in excess of Client’s documented instructions, Direqt shall notify Client of such a requirement, unless such Data Privacy Law prohibits such notification on important grounds of public interest, in which case it will notify Client as soon as the Data Privacy Law permits it to do so.

6.3 Direqt shall notify Client if Direqt reasonably believes that an instruction issued by Client would violate any Data Privacy Law, in which case Direqt will be entitled to suspend performance of such instruction, until Client confirms in writing that such instruction is valid under applicable Data Privacy Law. 

6.4 If Direqt cannot comply with this Data Processing Addendum for whatever reason, then it shall inform Client of its inability to comply, in which case the Parties shall negotiate in good faith alternative Processing. If no other alternative Processing is commercially reasonable to Direqt, then Direqt may immediately suspend any Processing of Client Data and/or terminate, in whole or in part, the Services Agreement and this Data Processing Addendum.

6.5 Upon Client’s request, Direqt will cooperate with Client to enable Client to: (a) comply with all reasonable requests of access, rectification, and/or deletion of Client Data arising from a Data Subject; (b) enforce rights of Data Subjects under the Data Privacy Law; and/or (c) comply with all requests from a supervisory authority, including but not limited to in the event of an investigation. All costs of such cooperation shall be borne by Client.

6.6 Direqt shall provide commercially reasonable assistance to Client where Client carries out a data privacy impact assessment relating to Client Data. All costs of such assistance shall be borne by Client.

6.7 Direqt shall notify Client in the event it receives any request, complaint, or communication relating to Client’s obligations under Data Privacy Laws (including from data protection authorities and/or supervisory authorities). 

7. SECURITY MEASURES.

7.1 Direqt shall take and implement appropriate technical and organizational security and confidentiality measures designed to provide a level of security appropriate to the risk to Client Data against the accidental or actual unauthorized use, modification, loss, compromise, destruction, or disclosure of, or access to, Client Data (a “Security Incident”). 

7.2 Such measures implemented in Section 7.1 shall take into account industry standards and costs of implementation as well as the nature, scope, context, and purposes of the Processing and the risk of varying likelihood and severity for the rights and freedoms of individuals.

7.3 For the Term of the Services Agreement, Direqt will ensure that all persons authorized to process Client Data only processes Client Data in accordance with instructions from Client (unless required to do otherwise under Data Privacy Law).

8. CONFIDENTIALITY. Direqt shall ensure that any persons entrusted to Process Client Data have committed themselves to confidentiality and/or are bound by related obligations under applicable Data Privacy Law. 

9. SECURITY INCIDENT NOTIFICATION OBLIGATIONS.

9.1 In the event of a Security Incident arising during the performance of the Services by Direqt, Direqt shall:

(a)   notify Client about the Security Incident without undue delay after becoming aware of the Security Incident;

(b) as part of the notification under Section 9.1(a), provide a description of the Security Incident including the nature of the Security Incident, the categories and approximate number of Data Subjects affected, the categories and approximate number of data records affected, the likely consequences of the Security Incident and the risks to affected Data Subjects;

(c) promptly update Client as additional relevant information set forth in Section 9.1(b) above become available;

(d) reasonably assist Client to ensure Client’s compliance with its notification obligations under Data Privacy Law; and 

(e) take all other actions as may be required by Direqt under the applicable Data Privacy Law.

9.2 Direqt shall make any information referred to under Section 9.1 available to Client on request. All such information shall be considered the Confidential Information of Direqt.

10. SUBPROCESSORS. 

10.1 Client authorizes Direqt to appoint (and permit each Subprocessor appointed in accordance with this Section 10 to appoint) Subprocessors in accordance with this Section 10 and any restrictions in the Services Agreement.

10.2 Notwithstanding anything to the contrary in this Data Processing Addendum or the Services Agreement, Direqt may continue to use all Subprocessors already engaged by Direqt as of the Effective Date, subject to Direqt promptly meeting the obligations set forth in Section 10.4.  

10.3 Direqt shall notify Client where Direqt wishes to engage a new Subprocessor to process Client Data and shall provide, upon Client’s request, the identity and location of the Subprocessor and a description of the processing to be subcontracted or outsourced to such Subprocessor. Where Direqt wishes to appoint a Subprocessor under this Data Processing Addendum, Direqt will select the Subprocessor with due diligence and will verify prior to engaging the Subprocessor that such Subprocessor is capable of complying with the obligations of Direqt towards Client, to the extent applicable to the services assigned to that Subprocessor. If, within five (5) days of receipt of such notice, Client notifies Direqt in writing of any objections (on reasonable grounds) to the proposed appointment, then Direqt shall not appoint (or disclose any Client Data to) the proposed Subprocessor until reasonable steps have been taken to address the reasonable objections raised by Client, and Client has been provided with a reasonable written explanation of the steps taken. 

10.4 When engaging any Subprocessor, Direqt will enter into a written contract with such Subprocessor containing data protection obligations no less onerous than those set forth in this Data Processing Addendum with respect to the protection of Client Data to the extent applicable to the nature of the Services provided by such Subprocessor. Direqt shall ensure the subcontracting agreement with such Subprocessor includes appropriate contractual provisions in accordance with Data Privacy Laws.

10.5 Such subcontracting under this Section 10 shall not release Direqt from their responsibility for their obligations under the Services Agreement. Direqt shall be responsible for the work and activities of its Subprocessors.

11. INTERNATIONAL DATA TRANSFERS.  

11.1 Where there are transfers of Personal Data from a Member State to a country that is not a Member State, the Parties agree and acknowledge that each Party is required to implement policies and procedures to ensure that such data transfers comply with Data Privacy Laws. Where applicable, all such transfers shall only be made pursuant to the European Commission 2010/87/EU of 5 February 2010 (the “Standard Contractual Clauses”) entered into between the Parties and attached hereto as Attachment 1. The Parties shall take all other actions required to legitimize the transfer, including, if necessary: (a) co-operating to register the Standard Contractual Clauses with any Supervisory Authority; (b) procuring approval from any such Supervisory Authority; or (c) providing additional information about the transfer to such Supervisory Authority. The parties agree that, pursuant to Clause 10 of the Standard Contractual Clauses, Section 11.2, Section 16, and Section 17.1 of this Data Processing Addendum address business related issues and provides additional privacy measures, and such sections are incorporated into the Standard Contractual Clauses by reference. In connection with the use of the Standard Contractual Clauses, the parties further agree and acknowledge that: (i) sections of this Data Processing Addendum addressing the same or similar subject matter as the Standard Contractual Clauses may be used to satisfy the applicable requirements of the Standard Contractual Clauses; and (ii) if required, the Parties shall sign a copy of the Standard Contractual Clauses and take such further action as is required by Data Privacy Laws to ensure that the Standard Contractual Clauses are legally valid. 

11.2 In the event either Party believes, in its reasonable discretion, that it is unable to comply with the requirements under the Standard Contractual Clauses or provide such a level of protection to Client Data, such Party shall notify the other Party of such determination and the other Party may, if it agrees with such determination and the Parties cannot reasonably supplement the Standard Contractual Clauses with additional terms and conditions that would provide the required level of protection or adopt another cross-border data transfer mechanism that will provide the required level of protection, suspend any further transfers of Client Data or terminate the Services Agreement.

11. 3 To the fullest extent permitted by law, if the European Commission adopts updated Controller-Processor Standard Contractual Clauses, Direqt may unilaterally amend this Data Processing Addendum by replacing the Standard Contractual Clauses attached hereto as Attachment 1 with the applicable Controller-Processor Standard Contractual Clauses adopted by the European Commission, including any edits or supplements Direqt needs to add to the Standard Contractual Clauses in order to complete them. Direqt will make the amended Standard Contractual Clauses available at https://www.direqt.io/dpa.

12. RETURN AND DESTRUCTION.

12.1 Without prejudice to any obligations under this Section 12, following termination or expiration of the Services Agreement for whatever reason, Direqt shall cease processing Client Data and shall require that all Subprocessors cease processing Client Data.

12.2 Following termination or expiration of the Services Agreement for whatever reason Direqt shall destroy all copies of Client Data, unless and for the duration Direqt is permitted to retain such Client Data in accordance with Data Privacy Laws. Notwithstanding the foregoing, to the extent it is not commercially reasonable for Direqt to remove Client Data from archive or other backup media, Direqt may retain Client Data on such media in accordance with its backup or other disaster recovery procedures. In the event Direqt retains Client Data after the Term, Direqt shall continue to comply with the confidentiality and privacy obligations hereunder until it is no longer in possession of Client Data.  

13. AUDITS.

13.1 Direqt shall, upon receiving at least thirty (30) days prior written notice from Client, submit Direqt’s facilities for a reasonable audit of Processing activities carried out under this Data Processing Addendum, where such audit shall be carried out by an independent third-party auditor mutually agreed upon by the Parties and bound by a confidentiality agreement with Direqt (“Auditor”) and, where applicable, approved by the relevant supervisory authority. Any effort as well as internal and external costs of audits requested by Client pursuant to this Section 13.1 shall be borne by Client. Notwithstanding the foregoing, a maximum of one (1) audit may be undertaken in any twelve (12) month period, unless additional audits are required subsequent to a Security Incident. 

13.2 Direqt shall provide Client or Auditor with the necessary information and shall keep the necessary records required for an audit of the processing of Client Data and will, subject to Data Privacy Law, make available said documents and/or data media to Client upon written request.

13.3 Direqt shall provide reasonable support for any and all audits of Client or Auditor under this Section 13 and shall contribute to the complete and efficient completion of the audit.

14. TERMINATION. The termination or expiration of the Services Agreement for any reason shall cause termination of this Data Processing Addendum. 

15. LIABILITY.
The liability of each Party under this Data Processing Addendum shall be subject to the exclusions and limitations of liability set out in the Services Agreement. Any reference to any “limitation of liability” of a party in the Services Agreement shall be interpreted to mean the aggregate liability of a Party under the Services Agreement and this Data Processing Addendum. 

16. COMPELLED DISCLOSURES. 
Any disclosure by Direqt or its representatives of any of the Client Data pursuant to applicable federal, state, or local law, regulation, or valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) will be subject to the terms of this paragraph. Prior to making such a disclosure, Direqt shall, to the extent permitted under the Legal Order, provide Client with: (a) prompt written notice of such requirement so that Client may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at Client’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Direqt remains subject to a Legal Order to disclose any Client Data, Direqt shall make reasonable efforts to disclose no more than the portion of Client Data which such Legal Order specifically requires Direqt to disclose.

17. MISCELLANEOUS.

17.1 Change in Data Privacy Laws. If a change in any Data Privacy Laws prevents Direqt from fulfilling all or part of its obligations under the Services Agreement or this Data Processing Addendum, the Parties shall suspend the processing of Client Data until that processing complies with the new requirements. If Direqt is unable to bring the processing of Client Data into compliance with the Data Privacy Laws within a reasonable period, Direqt may terminate the Services Agreement and/or this Data Processing Addendum upon written notice to the Client.

17.2 Amendment. This Data Processing Addendum may not be amended or modified except in writing signed by authorized representatives of both Parties.

17.3 Severability. If any provision in this Data Processing Addendum is determined to be ineffective or void by any court or body of competent jurisdiction or by virtue of any legislation to which it is subject, it shall be ineffective or void to that extent only and the validity and enforceability of the remaining provisions of the Data Processing Addendum and the Services Agreement shall not be affected. The Parties shall promptly and in good faith replace the ineffective or void provision with a lawful provision that reflects the business purpose of the ineffective or void provision. The Parties shall similarly promptly and in good faith add any necessary appropriate provision where such a provision is found to be missing by any court or body of competent jurisdiction or by virtue of any legislation to which this Data Processing Addendum is subject.

17.4 Governing Law. Notwithstanding anything to the contrary in the Services Agreement, this Data Processing Addendum shall be governed by and construed in accordance with the national law that applies to the Client.

17.5 Headings. The headings in this Data Processing Addendum are for reference only and shall not affect the interpretation of this Data Processing Addendum.

                                                                                                                    Attachment 1 

                                                                                                 Commission Decision C(2010)593
                                                                                       Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: The Client set forth in the Data Processing Addendum

Address: As set forth in the Data Processing Addendum
               
                                                                                                              (the data exporter)

And

Name of the data importing organisation:  Direqt Inc.

Address: 800 5th Ave, #101-326, Seattle, WA 98104 

                                                                                                              (the data importer)
                                                                                               each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

                                                                                                                      Clause 1 
                                                                                                                   
Definitions

For the purposes of the Clauses:

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) 'the data exporter' means the controller who transfers the personal data;

(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

                                                                                                                  Clause 2
                                                                                                    
Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.


                                                                                                                  Clause 3
                                                                                                 
Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary. 

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. 

3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses. 

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law. 
                                                                                                                  Clause 4
                                                                                            
Obligations of the data exporter

The data exporter agrees and warrants: 

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

                                                                                                                  Clause 5
                                                                                            
Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:
      (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

      (ii) any accidental or unauthorised access, and

      (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

                                                                                                                  Clause 6
                                                                                                                  
Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

        The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

                                                                                                                  Clause 7
                                                                                                 
Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

      (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

      (b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

                                                                                                                  Clause 8
                                                                                     
Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in
Clause 5 (b).

                                                                                                                  Clause 9
                                                                                                            
Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.


                                                                                                                  Clause 10
                                                                                                   
Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

                                                                                                                  Clause 11
                                                                                                             
Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement. 

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority. 

                                                                                                                  Clause 12
                                                          
Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Execution:  The data exporter and data importer are deemed to have accepted and executed these Standard Contractual Clauses (processors) as of the Effective Date of the Data Processing Addendum attached hereto, with no additional signatures required.



APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Data importer
The data importer is (please specify briefly activities relevant to the transfer):

The developer and host of a Software-as-a-Service text message platform, as set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

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

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

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

Telephone numbers and as otherwise set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

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

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

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

As set forth in the Data Processing Addendum to which these Standard Contractual Clauses are attached and the Services Agreement referenced therein.

Execution:  The data exporter and data importer are deemed to have accepted and executed these Standard Contractual Clauses (processors) of the Effective Date of the Data Processing Addendum attached hereto, with no additional signatures required.




APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):

     Direqt implements industry best practices for security designed to protect Client Data against accidental or unauthorized disclosure. Access to Client Data is limited to employees that require such access to perform their official duties. Industry-standard encryption is used for the transfer and storage of all Client Data. Direqt is committed to ensuring a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation.