This Data Processing Agreement (the “DPA”), entered into by the SendPulse customer (hereinafter “Customer”, “user”, “you”) and SendPulse Inc. (hereinafter referred to as “SendPulse service”, “SendPulse”, “The Service”, “we”), governs the processing of personal data that Customer uploads or otherwise provides SendPulse in connection with the services and the processing of any personal data that SendPulse uploads or otherwise provides to Customer in connection with the services.
“Controller-to-Controller SCCs” means the Standard Contractual Clauses (Controller to Controller Transfers - Set II) in the Appendix to the European Commission Decision of December 27, 2004 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004D0915&from=EN, as may be amended or replaced from time to time by the European Commission.
“Controller-to-Processor SCCs” means the Standard Contractual Clauses (Processors) in the Appendix to the European Commission Decision of February 5, 2010 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010D0087&from=EN , as may be amended or replaced from time to time by the European Commission.
“Customer Personal Data” means Personal Data
- that Customer uploads or otherwise provides to SendPulse in connection with its use of SendPulse services;
- for which Customer is otherwise a data controller.
“Data Controller” means Customer.
“Data Processor” means SendPulse.
“Data Exporter” means the controller who transfers the personal data;
“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;
“Data Protection Requirements” means the Directive, the General Data Protection Regulation, Local Data Protection Laws, any subordinate legislation and regulation implementing the General Data Protection Regulation, and all Privacy Laws.
“Directive” means the EU Data Protection Directive 95/46/EC (as amended).
“EEA” means the European Economic Area.
“EU Personal Data” means Personal Data the sharing of which pursuant to this Agreement is regulated by the Directive, the General Data Protection Regulation and Local Data Protection Laws.
“General Data Protection Regulation” means the European Union Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
“Local Data Protection Laws” means any subordinate legislation and regulation implementing the Directive or the General Data Protection Regulation which may apply to the Agreement.
“Privacy Laws” means all applicable laws, regulations, and other legal requirements relating to:
- privacy, data security, consumer protection, marketing, promotion, and text messaging, email, and other communications;
- the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of any Personal Data.
“SCCs” means all Controller-to-Processor SCCs and Controller-to-Controller SCCs entered into between the parties under the Agreement.
“Subprocessor” means any entity which provides processing services to SendPulse in furtherance of SendPulse’s processing on behalf of Customer.
The terms, “Commission”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. Nature of data processing
Each party agrees to process Personal Data received under the Agreement only for the purposes set forth in the Agreement. For the avoidance of doubt, the categories of Personal Data processed and the categories of data subjects subject to this DPA are described in Appendix 1 to this DPA.
3. Compliance with laws
The parties shall each comply with their respective obligations under all applicable Data Protection Requirements.
4. Customer obligations
Customer agrees to:
4.1 Processing of Customer Personal Data
Provide instructions to SendPulse and determine the purposes and general means of SendPulse’s processing of Customer Personal Data in accordance with the Agreement.
4.2 Security and Obligations
Comply with its protection, security and other obligations with respect to Customer Personal Data prescribed by Data Protection Requirements for data controllers by:
- establishing and maintaining the procedure for the exercise of the rights of the individuals whose Customer Personal Data are processed on behalf of Customer;
- processing only data that has been lawfully and validly collected and ensuring that such data will be relevant and proportionate to the respective uses;
- ensuring compliance with the provisions of this Agreement by its personnel or by any third-party accessing or using Customer Personal Data on its behalf.
Engage SendPulse of any other Subprocessors in accordance with paragraph 5.1 (hereby grants generally written authorization in accordance with Article 28 "General rules for data protection").
5. SendPulse obligations
SendPulse agrees to:
5.1 Processing Requirements
- Process Customer Personal Data (i) only for the purpose of providing, supporting and improving The Service, using appropriate technical and organizational security measures; and (ii) in compliance with the instructions received from Customer.
- SendPulse will not use or process the Customer Personal Data for any other purpose. SendPulse will promptly inform Customer if it cannot comply with the requirements under Sections 5-8 of this DPA, in which case Customer may terminate the Agreement or take any other reasonable action, including suspending data processing operations.
- Inform Customer promptly if, in SendPulse’s opinion, an instruction from Customer violates applicable Data Protection Requirements.
- If SendPulse is collecting Customer Personal Data from individuals on behalf of Customer, follow Customer’s instructions regarding such Customer Personal Data collection (including with regard to the provision of notice and exercise of choice).
- Take commercially reasonable steps to ensure that (i) persons employed by it and (ii) other persons engaged to perform on behalf of SendPulse comply with the terms of the Agreement.
- Ensure that its employees, authorized agents, and any Subprocessors are required to comply with and acknowledge and respect the confidentiality of the Customer Personal Data, including after the end of their respective employment, contract or assignment.
- If it intends to engage Subprocessors to help it satisfy its obligations in accordance with this DPA or to delegate all or part of the processing activities to such Subprocessors (according to the Appendix 1) with accepting this contract like as consent of Customer to such subcontracting, SendPulse shall inform the Customer of any intended changes concerning the addition or replacement of other Subprocessors, thereby giving the Customer the opportunity to object to such changes.
- Upon request, provide Customer with a summary of SendPulse’s privacy and security policies.
- Inform the Customer if SendPulse undertakes an independent security review.
5.2 Notice to Customer
SendPulse will inform the Customer if SendPulse becomes aware of:
- Any non-compliance by SendPulse or its employees with Sections 5-8 of this DPA or the Data Protection Requirements relating to the protection of Customer Personal Data processed under this DPA.
- Any legally binding request for disclosure of Customer Personal Data by a law enforcement authority, unless SendPulse is otherwise forbidden by law to inform Customer, for example, to preserve the confidentiality of an investigation by law enforcement authorities.
- Any notice, inquiry or investigation by a Supervisory Authority with respect to Customer Personal Data.
- Any complaint or request (in particular, requests for access to, rectification or blocking of Customer Personal Data) received directly from data subjects of Customer. SendPulse will respond to any such request without Customer’s prior written authorization.
5.3 Assistance to Customer
SendPulse will provide reasonable assistance to Customer regarding:
- Any requests from Customer data subjects in respect of access to or the rectification, erasure, restriction, portability, blocking or deletion of Customer Personal Data that SendPulse processes for Customer. In the event that a data subject sends such a request directly to SendPulse, SendPulse will promptly send such request to Customer.
- The investigation of Personal Data Breaches and the notification to the Supervisory Authority and Customer's data subjects regarding such Personal Data Breaches.
- Where appropriate, the preparation of data protection impact assessments and, where necessary, carrying out consultations with any Supervisory Authority.
5.4 Required Processing
If SendPulse is required by Data Protection Requirements to process any Customer Personal Data for a reason other than providing the services described in the Agreement, SendPulse will inform Customer of this requirement in advance of any processing, unless SendPulse is legally prohibited from informing Customer of such processing (e.g., as a result of secrecy requirements that may exist under applicable EU member state laws).
- Maintain appropriate organizational and technical security measures (including with respect to personnel, facilities, hardware and software, storage and networks, access controls, monitoring and logging, vulnerability and breach detection, incident response, encryption of Customer Personal Data while in transit and at rest) to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of Customer Personal Data.
- Be responsible for the sufficiency of the security, privacy, and confidentiality safeguards of all SendPulse personnel with respect to Customer Personal Data and liable for any failure by such SendPulse personnel to meet the terms of this DPA.
- Take reasonable steps to confirm that all SendPulse personnel are protecting the security, privacy, and confidentiality of Customer Personal Data consistent with the requirements of this DPA.
- Notify Customer of any Personal Data Breach by SendPulse, its Subprocessors, or any other third-parties acting on SendPulse’s behalf without undue delay and in any event within 72 hours of becoming aware of a Personal Data Breach.
6. Audit, certification
6.1 Supervisory Authority Audit
If a Supervisory Authority requires an audit of the data processing facilities from which SendPulse processes Customer Personal Data in order to ascertain or monitor Customer's compliance with Data Protection Requirements, SendPulse will cooperate with such audit. The Customer is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time SendPulse expends for any such audit, in addition to the rates for services performed by SendPulse.
Customer may, prior to the commencement of Processing, and at regular intervals thereafter, audit the technical and organizational measures taken by SendPulse.
For such purpose, Customer may, e.g.,
- Obtain information from SendPulse.
- Request SendPulse to submit to Customer an existing attestation or certificate by an independent professional expert, or
- Upon reasonable and timely advance agreement, during regular business hours and without interrupting SendPulse’s business operations, conduct an on-site inspection of SendPulse’s business operations or have the same conducted by a qualified third party which shall not be a competitor of SendPulse.
SendPulse shall, upon Customer’s written request and within a reasonable period of time, provide Customer with all information necessary for such audit, to the extent that such information is within Processor’s control and SendPulse is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.
7. Data transfers
For transfers of EU Personal Data to SendPulse for processing by SendPulse in a jurisdiction other than a jurisdiction in the EU, the EEA, or the European Commission-approved countries providing ‘adequate’ data protection, SendPulse agrees it will:
- provide at least the same level of privacy protection for EU Personal Data as required under the U.S.-EU and U.S.-Swiss Privacy Shield frameworks;
- use the form of the Controller-to-Processor SCCs adopted by the EU Commission.
If data transfers under Section 7 of this DPA rely on Controller-to-Processor SCCs to enable the lawful transfer of EU Personal Data, as set forth in the preceding sentence, the parties agree that data subjects for whom a SendPulse entity processes EU Personal Data are third-party beneficiaries under the Controller-to-Processor SCCs. If SendPulse is unable or becomes unable to comply with these requirements, then EU Personal Data will be processed and used exclusively within the territory of a member state of the European Union and any movement of EU Personal Data to a non-EU country requires the prior written consent of Customer. SendPulse shall promptly notify Customer of any inability by SendPulse to comply with the provisions of this Section 7.
8. Data return and deletion
The parties agree that on the termination of the data processing services or upon Customer’s reasonable request, SendPulse shall, and shall cause any Subprocessors to, at the choice of Customer, return all the Customer Personal Data and copies of such data to Customer or securely destroy them and demonstrate to the satisfaction of Customer that it has taken such measures, unless Data Protection Requirements prevent SendPulse from returning or destroying all or part of the Customer Personal Data disclosed. In such case, SendPulse agrees to preserve the confidentiality of the Customer Personal Data retained by it and that it will only actively process such Customer Personal Data after such date in order to comply with applicable laws.
9. Third party data processors
Customer acknowledges that in the provision of some services, SendPulse, on receipt of instructions from Customer, may transfer Customer Personal Data to and otherwise interact with third party data processors.
Customer agrees that if and to the extent such transfers occur, Customer is responsible for entering into separate contractual arrangements with such third party data processors binding them to comply with obligations in accordance with Data Protection Requirements.
For the avoidance of doubt, such third party data processors are not Subprocessors.
This DPA shall remain in effect as long as SendPulse carries out Personal Data processing operations on behalf of Customer or until the termination of the SendPulse Agreement (and all Personal Data has been returned or deleted in accordance with Section 8 above).
11. Governing law, jurisdition and venue
Notwithstanding anything in the Agreement to the contrary, this DPA shall be governed by the laws of the State of Delaware, USA and any action or proceeding related to this DPA (including those arising from non contractual disputes or claims) will be decided by the state and federal courts of the State of Delaware, and each party will be subject to the jurisdiction of those courts.
The data exporter is an individual or entity that has contracted with SendPulse for email marketing services. Activities relevant to the transfer include newsletters, promotions, market research, advertisements, offers, general updates, and communications regarding services offered by the data exporter.
The data importer is an email service provider that allows users to store, create, send, target, and track email addresses and email campaigns.
The personal data transferred may concern the following categories of data subjects:
customers, clients, prospective customers and clients, students, donors, and employees.
Categories of data
The personal data transferred may concern the following categories of data: name, gender, birthdate, language, email address, telephone number, residence address, employer, business address, title, expertise, other demographic information, purchase history, and event attendance. Data will not include Social Security numbers or other national ID numbers, passwords, security credentials, or sensitive personal information of any kind.
The personal data transferred will be subjected to the following basic processing activities: storage; access to customer service in accordance with your use of features; abuse detection, prevention, and remediation; maintaining, improving, and providing of our Services.
Data exporter expressly authorizes data importer to respond to the following requests received directly from the data subjects: unsubscribes, updates to information, removal of information, or a block of that data subject’s information from being stored in data importer’s system.
Data exporter consents to subprocessing by the following subcontractors:
- AMAZON WEB SERVICES INC.
- CONTABO INC.
- HETZNER LTD.
- VELIA.NET INTERNETDIENSTE GMBH
- OVH INC.
- GOOGLE LLC.
- SELECTEL LTD.