Data Processing Addendum
Updated June 24th, 2023
This Data Processing Addendum (this “Addendum”) is incorporated into and forms part of the Terms and Conditions (which govern all access to or use of the Services set forth in Orders referencing the Terms and form the parties “Agreement”) between Xima, LLC (“Xima”) and the Customer identified in the Agreement (“Customer”) and is effective as of the Effective Date (as defined in the Agreement).
Capitalized terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Agreement. Except as expressly modified below, the terms of the Agreement shall remain in full force and effect.
The parties hereby agree that the terms and conditions set out below shall be added as an addendum to the Agreement. The following obligations shall only apply to the extent required by Data Protection Laws with regard to the relevant Customer Personal Data, if applicable.
1.
Definitions
1.1
“Controller” means an entity that determines the purposes and means of the Processing of Personal Data.
1.2
“Customer Personal Data” means Personal Data contained in Customer Content that is Processed by Xima on behalf of Customer to perform the Services under the Agreement.
1.3
“Data Protection Laws” means the data privacy and security laws and regulations of any jurisdiction applicable to the Processing of Customer Personal Data, including, in each case to the extent applicable, European Data Protection Laws and United States Data Protection Laws.
1.4
“Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.
1.5
“European Data Protection Laws” means, in each case to the extent applicable: (a) the EU General Data Protection Regulation 2016/679 (“GDPR”); (b) the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), the Data Protection Act of 2018, and all other laws relating to data protection, the processing of personal data, privacy, or electronic communications in force from time to time in the United Kingdom (collectively, “UK Data Protection Laws”); (c) the Swiss Federal Act on Data Protection (“Swiss FADP”); and (d) any other applicable law, rule, or regulation related to the protection of Customer Personal Data in the European Economic Area, United Kingdom, or Switzerland that is already in force or that will come into force during the term of this Addendum.
1.6
“Personal Data” means information that constitutes “personal information,” “personal data,” “personally identifiable information,” or similar term under Data Protection Laws.
1.7
“Process” means any operation or set of operations performed upon Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, alignment, combination, restriction, erasure, destruction or disclosure by transmission, dissemination or otherwise making available.
1.8
“Processor” means an entity that Processes Personal Data on behalf of a Controller.
1.9
“Security Incident” means a breach of Xima’s security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data in Xima’s possession, custody, or control. “Security Incident” does not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.
1.10
“Standard Contractual Clauses” means, as applicable, Module Two (Transfer controller to processor) or Module Three (Transfer processor to processor) of the standard contractual clauses approved by the European Commission’s implementing decision (C(2021)3972) of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/678 or the European Parliament and of the Council (available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021D0914&qid=1688587744942), as supplemented or modified by Appendix 2.
1.11
“Subprocessor” means any Processor appointed by Xima to Process Customer Personal Data on behalf of Customer under the Agreement.
1.12
“Supervisory Authority” means an independent competent public authority established or recognized under Data Protection Laws.
1.13
“United States Data Protection Laws” means, in each case to the extent applicable: (a) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, when effective, and its implementing regulations (collectively, “CCPA”); (b) the Virginia Consumer Data Protection Act (“VCPDA”), when effective; (c) the Colorado Privacy Act and its implementing regulations (“CPA”), when effective; (d) the Utah Consumer Privacy Act (“UCPA”), when effective; (e) Connecticut SB6, An Act Concerning Personal Data Privacy and Online Monitoring (“CTDPA”), when effective; and (f) any other applicable law or regulation related to the protection of Customer Personal Data in the United States that is already in force or that will come into force during the term of this Addendum.
2.
PROCESSING OF CUSTOMER PERSONAL DATA.
2.1
Roles of the Parties; Compliance. The parties acknowledge and agree that, as between the parties, with regard to the Processing of Customer Personal Data under the Agreement, Customer is a Controller and Xima is a Processor. In some circumstances, the parties acknowledge that Customer may be acting as a Processor to a third-party Controller in respect of Customer Personal Data, in which case Xima will remain a Processor with respect to the Customer in such event. Each party will comply with the obligations applicable to it in such role under Data Protection Laws with respect to the Processing of Customer Personal Data.
2.2
Customer Instructions. Xima will Process Customer Personal Data only in accordance with Customer’s documented instructions unless otherwise required by applicable law, in which case Xima will inform Customer of such Processing unless notification is prohibited by applicable law. Customer hereby instructs Xima to Process Customer Personal Data: (a) to provide the Services to Customer; (b) to perform its obligations and exercise its rights under the Agreement and this Addendum; and (c) as necessary to prevent or address technical problems with the Services. Xima will notify Customer if, in its opinion, an instruction of Customer infringes upon Data Protection Laws. Customer’s instructions for the Processing of Customer Personal Data shall comply with Data Protection Laws. Customer shall be responsible for: (i) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Customer’s use and disclosure and Xima’s Processing of Customer Personal Data; and (ii) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Customer Personal Data to Xima to permit the Processing of such Customer Personal Data by Xima for the purposes of performing Xima’s obligations under the Agreement or as may be required by Data Protection Laws. Customer shall notify Xima of any changes in, or revocation of, the permission to use, disclose, or otherwise Process Customer Personal Data that would impact Xima’s ability to comply with the Agreement, this Addendum, or Data Protection Laws.
2.3
Details of Processing. The parties acknowledge and agree that the nature and purpose of the Processing of Customer Personal Data, the types of Customer Personal Data Processed, the categories of Data Subjects, and other details regarding the Processing of Customer Personal Data are as set forth in Appendix 1.
2.4
Processing Subject to the CCPA. As used in this Section 2.4, the terms “Sell,” “Share,” “Business Purpose,” and “Commercial Purpose” shall have the meanings given in the CCPA and “Personal Information” shall mean any personal information (as defined in the CCPA) contained in Customer Personal Data. Xima will not: (a) Sell or Share any Personal Information; (b) retain, use, or disclose any Personal Information (i) for any purpose other than for the Business Purposes specified in the Agreement, including for any Commercial Purpose other than the Business Purposes specified in the Agreement, or as otherwise permitted by the CCPA, or (ii) outside of the direct business relationship between Customer and Xima; or (c) combine Personal Information received from, or on behalf of, Customer with Personal Data received from or on behalf of any third party, or collected from Xima’s own interaction with Data Subjects, except to perform any Business Purpose permitted by the CCPA. Xima hereby certifies that it understands the foregoing restrictions under this Section 2.4 and will comply with them. The parties acknowledge that the Personal Information disclosed by Customer to Xima is provided to Xima only for the limited and specified purposes set forth in the Agreement and this Addendum. Xima will comply with applicable obligations under the CCPA and provide the same level of privacy protection to Personal Information as is required by the CCPA. Customer has the right to take reasonable and appropriate steps to help ensure that Xima uses the Personal Information transferred in a manner consistent with Customer’s obligations under the CCPA by exercising Customer’s audit rights in Section 8. Xima will notify Customer if it makes a determination that Xima can no longer meet its obligations under the CCPA. If Xima notifies Customer of unauthorized use of Personal Information, including under the foregoing sentence, Customer will have the right to take reasonable and appropriate steps to stop and remediate such unauthorized use by limiting the Personal Information shared with Xima, terminating the portion of the Agreement relevant to such unauthorized use, or such other steps mutually agreed between the parties in writing.
3.
4.
SECURITY.
4.1
Security Measures. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Xima shall implement appropriate technical and organizational measures designed to ensure a level of security appropriate to the risk.
4.2
Security Incidents. Upon becoming aware of a confirmed Security Incident, Xima will: (a) notify Customer of the Security Incident without undue delay after becoming aware of the Security Incident; and (b) take reasonable steps to identify the cause of such Security Incident, minimize harm, and prevent a recurrence. Xima will take reasonable steps to provide Customer with information available to Xima that Customer may reasonably require to comply with its obligations under Data Protection Laws. Xima’s notification of or response to a Security Incident under this Section 4.2 will not be construed as an acknowledgement by Xima of any fault or liability with respect to the Security Incident.
4.3
Customer Responsibilities. Customer agrees that, without limitation of Xima’s obligations under this Section 4, Customer is solely responsible for its use of the Services, including: (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data; and (b) securing any account authentication credentials, systems, and devices Customer uses to access or connect to the Services, where applicable. Without limiting Xima’s obligations hereunder, Customer is responsible for reviewing the information made available by Xima relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws.
5.
SUBPROCESSING. Subject to the requirements of this Section 5, Customer generally authorizes Xima to engage Subprocessors as Xima considers reasonably appropriate for the Processing of Customer Personal Data. A list of Xima’s Subprocessors, including their functions and locations, is available upon Customer’s request and may be updated by Xima from time to time in accordance with this Section 5. Xima will notify Customer of the addition or replacement of any Subprocessor at least 10 days prior to such engagement. Customer may object to such changes on reasonable data protection grounds by providing Xima written notice of such objection within 10 days. Upon receiving such an objection, where practicable and at Xima’s sole discretion Xima will use commercially reasonable efforts to: (a) work with Customer in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; or (b) take corrective steps requested by Customer in its objection and proceed to use the new Subprocessor. If Xima informs Customer that such change or corrective steps cannot be made, Customer may, as its sole and exclusive remedy available under this Section 5, terminate the relevant portion of the Agreement involving the Services which require the use of the proposed Subprocessor by providing written notice to Xima. When engaging any Subprocessor, Xima will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this Addendum. Xima shall be liable for the acts and omissions of the Subprocessor to the extent Xima would be liable under the Agreement and this Addendum.
6.
DATA SUBJECT RIGHTS. Xima will, taking into account the nature of the Processing of Customer Personal Data and the functionality of the Services, provide reasonable assistance to Customer by appropriate technical and organizational measures, insofar as this is possible, as necessary for Customer to fulfill its obligations under Data Protection Laws to respond to requests by Data Subjects to exercise their rights under Data Protection Laws. Xima reserves the right to charge Customer on a time and materials basis in the event that Xima considers that such assistance is onerous, complex, frequent, or time consuming. If Xima receives a request from a Data Subject under any Data Protection Laws with respect to Customer Personal Data, Xima will advise the Data Subject to submit the request to Customer and Customer will be responsible for responding to any such request.
7.
ASSESSMENTS AND PRIOR CONSULTATIONS. In the event that Data Protection Laws require Customer to conduct a data protection impact assessment, transfer impact assessment, or prior consultation with a Supervisory Authority in connection with Xima’s Processing of Customer Personal Data, following written request from Customer, Xima shall use reasonable commercial efforts to provide relevant information and assistance to Customer to fulfil such request, taking into account the nature of Xima’s Processing of Customer Personal Data and the information available to Xima. Xima reserves the right to charge Customer on a time and materials basis in the event that Xima considers that such assistance is onerous, complex, frequent, or time consuming.
8.
RELEVANT RECORDS AND AUDIT RIGHTS.
8.1
Review of Information and Records. Upon Customer’s reasonable written request, Xima will make available to Customer all information in Xima’s possession reasonably necessary to demonstrate Xima’s compliance with Data Protection Laws and Xima’s obligations set out in this Addendum. Such information will be made available to Customer no more than once per calendar year and subject to the confidentiality obligations of the Agreement or a mutually-agreed non-disclosure agreement.
8.2
Audits. If Customer requires information for its compliance with Data Protection Laws in addition to the information provided under Section 8.1, at Customer’s sole expense and to the extent Customer is unable to access the additional information on its own, Xima will allow for, cooperate with, and contribute to reasonable assessments and audits, including inspections, by Customer or an auditor mandated by Customer (“Mandated Auditor”), provided that (a) Customer provides Xima with reasonable advance written notice including the anticipated date of the audit, the proposed scope of the audit, and the identity of any Mandated Auditor, which shall not be a competitor of Xima; (b) Xima approves the Mandated Auditor in writing, with such approval not to be unreasonably withheld; (c) the audit is conducted during normal business hours and in a manner that does not have any adverse impact on Xima’s normal business operations; (d) Customer or any Mandated Auditor complies with Xima’s standard safety, confidentiality, and security policies or procedures in conducting any such audits; (e) any records, data, or information accessed by Customer or any Mandated Auditor in the performance of any such audit, or any results of any such audit, will be deemed to be the Confidential Information of Xima and subject to a nondisclosure agreement to be provided by Xima; and (f) Customer may initiate such audit not more than once per calendar year unless otherwise required by a Supervisory Authority or Data Protection Laws.
8.3
Results of Audits. Customer will promptly notify Xima of any non-compliance discovered during the course of an audit and provide Xima any reports generated in connection with any audit under this Section, unless prohibited by Data Protection Laws or otherwise instructed by a Supervisory Authority. Customer may use the audit reports solely for the purposes of meeting Customer’s audit requirements under Data Protection Laws to confirm that Xima’s Processing of Customer Personal Data complies with this Addendum.
9.
DATA TRANSFERS
9.1
Data Processing Facilities. Xima may, subject to Sections 9.2 and 9.3, Process Customer Personal Data in the United States or anywhere Xima or its Subprocessors maintains facilities. Customer is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of Data Protection Laws.
9.2
European Transfers. If Customer transfers Customer Personal Data to Xima that is subject to European Data Protection Laws, and such transfer is not subject to an alternative adequate transfer mechanism under European Data Protection Laws or otherwise exempt from cross-border transfer restrictions, then Customer (as “data exporter”) and Xima (as “data importer”) agree that the applicable terms of the Standard Contractual Clauses shall apply to and govern such transfer and are hereby incorporated herein by reference. In furtherance of the foregoing, the parties agree that: (a) the execution of this Addendum shall constitute execution of the applicable Standard Contractual Clauses as of the Addendum Effective Date; (b) the relevant selections, terms, and modifications set forth in Appendix 2 shall apply, as applicable; and (c) the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under European Data Protection Laws in the absence of such Standard Contractual Clauses on any other basis.
9.3
Other Jurisdictions. If Customer transfers Customer Personal Data to Xima that is subject to Data Protection Laws other than European Data Protection Laws which require the parties to enter into standard contractual clauses to ensure the protection of the transferred Customer Personal Data, and the transfer is not subject to an alternative adequate transfer mechanism under Data Protection Laws or otherwise exempt from cross-border transfer restrictions, then the parties agree that the applicable terms of any standard contractual clauses approved or adopted by the relevant Supervisory Authority pursuant to such Data Protection Laws shall automatically apply to such transfer and, where applicable, shall be completed on a mutatis mutandis basis to the completion of the Standard Contractual Clauses as described in Section 9.2.
10.
DELETION OR RETURN OF CUSTOMER PERSONAL DATA. Xima will delete or return Customer Personal Data in accordance with the terms of the Agreement.
11.
MODIFICATIONS TO THIS ADDENDUM. In the event that a modification to this Addendum is required for compliance with Data Protection Laws, Xima may modify this Addendum by notifying Customer at least 30 days (or such shorter period as may be required to comply with Data Protection Laws) before the change will take effect by either (a) providing notice in accordance with the Agreement, or (b) alerting Customer via the Services. If Customer objects to any such modification, Customer may immediately terminate this Addendum and the Agreement for convenience by giving written notice to Xima within 30 days of being informed by Xima of the modification.
12.
GENERAL TERMS. This Addendum will, notwithstanding the expiration or termination of the Agreement, remain in effect until, and automatically expire upon, Xima’s deletion or return of all Customer Personal Data. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (a) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible; or, if this is not possible, (b) construed in a manner as if the invalid or unenforceable part had never been contained therein. To the extent of any conflict or inconsistency between this Addendum and the other terms of the Agreement in relation to the Processing of Customer Personal Data, this Addendum will govern. Unless otherwise expressly stated herein, the parties will provide notices under this Addendum in accordance with the Agreement, provided that all such notices may be sent via email. Any liabilities arising in respect of this Addendum are subject to the limitations of liability under the Agreement. This Addendum will be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
APPENDIX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA
1. Subject matter and duration of the Processing of Customer Personal Data
The subject matter and duration of the Processing are as described in the Agreement and the Addendum.
2. Nature and purpose of the Processing of Customer Personal Data
The nature and purpose of the Processing are those activities reasonably required to facilitate or support the provision of the Services as described in the Agreement and the Addendum.
3. The categories of Data Subjects to whom Customer Personal Data relates
The categories of Data Subjects shall be as is contemplated or related to the Processing described in the Agreement, and may include Customer’s Authorized Users, call center agents, and customers (individuals engaging with Customer’s Contact Center).
4. The categories of Customer Personal Data
The categories of Customer Personal Data Processed are those categories contemplated in and permitted by Agreement, and may include first and last name, login information, phone numbers, call event data, and recordings of communications (e.g., voice, chat, SMS, and email).
5. The sensitive data included in Customer Personal Data
The categories of sensitive data, if any, are determined by the Customer.
6. The frequency of Customer’s transfer of Customer Personal Data to Xima:
If applicable, on a continuous basis for the term of the Agreement.
7. The period for which Customer Personal Data will be retained, or, if that is not possible, the criteria used to determine that period:
As set forth in the Addendum or the Agreement.
8. For transfers to Subprocessors, the subject matter, nature and duration of the Processing of Customer Personal Data:
If applicable, as set forth in the Addendum or the Agreement.
APPENDIX 2: STANDARD CONTRACTUAL CLAUSES
1.
Application of Modules. If Customer is acting as a Controller with respect to Customer Personal Data, “Module Two: Transfer controller to processor” of the Standard Contractual Clauses shall apply. If Customer is acting as a Processor to a third-party Controller with respect to Customer Personal Data, Xima is a sub-Processor and “Module Three: Transfer processor to processor” of the Standard Contractual Clauses shall apply.
2.
Sections I-V. The parties agree to the following selections in Sections I-IV of the Standard Contractual Clauses: (a) the parties select Option 2 in Clause 9(a) and the specified time period shall be the notification time period set forth in Section 5 of the Addendum; (b) the optional language in Clause 11(a) is omitted; (c) the parties select Option 1 in Clause 17 and the governing law of the Republic of Ireland will apply; and (d) in Clause 18(b), the parties select the courts of the Republic of Ireland.
3.
Annexes. The name, address, contact details, activities relevant to the transfer, and role of the parties set forth in the Agreement and the Addendum shall be used to complete Annex I.A. of the Standard Contractual Clauses. The information set forth in Appendix 1 to the Addendum shall be used to complete Annex I.B. of the Standard Contractual Clauses. The competent supervisory authority in Annex I.C. of the Standard Contractual Clauses shall be the relevant supervisory authority determined by Clause 13 and the GDPR, unless otherwise set forth in Sections 5 or 6 of this Appendix 2. If such determination is not clear, then the competent supervisory authority shall be the Irish Data Protection Authority. The technical and organizational measures in Annex II of the Standard Contractual Clauses shall be the measures set forth in Section 4 of the Addendum.
4.
Supplemental Business-Related Clauses. In accordance with Clause 2 of the Standard Contractual Clauses, the parties wish to supplement the Standard Contractual Clauses with business-related clauses, which shall neither be interpreted nor applied in such a way as to contradict the Standard Contractual Clauses (whether directly or indirectly) or to prejudice the fundamental rights and freedoms of Data Subjects. Xima and Customer therefore agree that the applicable terms of the Agreement and the Addendum shall apply if, and to the extent that, they are permitted under the Standard Contractual Clauses, including without limitation the following:
(a) Instructions. The instructions described in Clause 8.1 are set forth in Section 2.2 of the Addendum.
(b) Protection of Confidentiality. In the event a Data Subject requests a copy of the Standard Contractual Clauses or the Addendum under Clause 8.3, Customer shall make all redactions reasonably necessary to protect business secrets or other confidential information of Xima.
(c) Deletion or Return. Deletion or return of Customer Personal Data by Xima under the Standard Contractual Clauses shall be governed by Section 10 of the Addendum. Certification of deletion of Customer Personal Data under Clause 8.5 or Clause 16(d) will be provided by Xima upon the written request of Customer.
(d) Onward Transfers. Xima shall be deemed in compliance with Clause 8.8 to the extent such onward transfers occur in accordance with Article 4 of the Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
(e) Audits and Certifications. Any information requests or audits provided for in Clause 8.9 shall be fulfilled in accordance with Section 8 of the Addendum.
(f) Liability. The relevant terms of the Agreement which govern indemnification or limitation of liability shall apply to Xima’s liability under Clauses 12(a), 12(d), and 12(f).
(g) Termination. The relevant terms of the Agreement which govern termination shall apply to a termination pursuant to Clauses 14(f) or 16.
5.
Transfers from the United Kingdom. If Customer transfers Customer Personal Data to Xima that is subject to UK Data Protection Laws, the parties acknowledge and agree that: (a) the template addendum issued by the Information Commissioner’s Office of the United Kingdom and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022 (available at: https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf), as it may be revised from time to time by the Information Commissioner’s Office (the “UK Addendum”) shall be incorporated by reference herein; (b) the UK Addendum shall apply to and modify the Standard Contractual Clauses solely to the extent that UK Data Protection Laws apply to Customer’s Processing when making the transfer; (c) the information required to be set forth in “Part 1: Tables” of the UK Addendum shall be completed using the information provided in this Appendix 2 and the Addendum; and (d) either party may end the UK Addendum in accordance with section 19 thereof.
6.
Transfers from Switzerland. If Customer transfers Customer Personal Data to Xima that is subject to the Swiss FADP, the following modifications shall apply to the Standard Contractual Clauses to the extent that the Swiss FADP applies to Customer’s Processing when making that transfer: (a) the term “member state” as used in the Standard Contractual Clauses shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from suing for their rights in their place of habitual residence in accordance with Clause 18(c) of the Standard Contractual Clauses; (b) the Standard Contractual Clauses shall also protect the data of legal entities until the entry into force of the revised Swiss FADP on or about 1 January 2023; (c) references to the GDPR or other governing law contained in the Standard Contractual Clauses shall also be interpreted to include the Swiss FADP; and (d) the parties agree that the supervisory authority as indicated in Annex I.C of the Standard Contractual Clauses shall be the Swiss Federal Data Protection and Information Commissioner.
