Provider Data Processing Agreement

This Data Processing Agreement (“DPA”) and its Data Processing Exhibit (“DPA Exhibit”) is made between SMS OpCo, LLC (“6MS”) and you or the entity you represent (“Customer”), and supplements and is incorporated in the Terms and Conditions for the Sale of Six Month Smiles’® Products and Services or any other agreement between 6MS and Customer governing 6MS’s provision of services to Customer where such services require 6MS to process European Union Personal Data on behalf of Customer (collectively, the “Agreement”).  This DPA is subject to the terms of the Agreement (capitalized terms used and not defined herein have the meanings given to them in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”)).

1. Data Processing

1. Scope. This DPA applies to Personal Data subject to GDPR that 6MS Processes on behalf of Customer. With respect to such Personal Data (if any), 6MS will act as the Processor of Personal Data to Customer, who may act as either a Controller or Processor of Personal Data.
   
   
2. Controller. Customer will determine the scope, purposes, and manner by which Personal Data may be Processed by 6MS. 6MS will Process Personal Data only as set forth in this DPA (or as required to comply with a legal obligation to which 6MS is subject).  Customer warrants that it has all necessary rights to provide Personal Data to 6MS for the Processing to be performed in relation to this DPA and the Agreement. To the extent required by GDPR and the Agreement, Customer is responsible for ensuring that any necessary Data Subject consents to the Processing described in this DPA and the Agreement are obtained, and for ensuring that a record of such consents is maintained. Should such consent be revoked by the Data Subject, Customer is responsible for communicating the fact of such revocation to 6MS, and 6MS remains responsible for implementing any Customer instructions with respect to the further Processing of that Personal Data.
   
   
3. Processor. 6MS will only Process Personal Data on the Documented Instructions (as defined in Section 2) of Customer in such manner as to meet 6MS’s obligations to Customer under the Agreement, except as required to comply with a legal obligation to which 6MS is subject. In such a case, 6MS shall inform Customer of that legal obligation before Processing, unless such law or relevant governmental authority prohibits informing Customer. Subject to the foregoing, 6MS shall never Process Personal Data in a manner inconsistent with the Documented Instructions of Customer. 6MS shall promptly inform Customer if, in its opinion, an instruction infringes GDPR or other European Union or Member State data protection provisions.
   
   
4. Details of Data Processing
   i. Subject Matter. The subject matter of the DPA will be the Processing of Personal Data provided by Customer to 6MS.
   
   ii. Duration. This DPA shall remain in effect for as long as 6MS Processes Personal Data on behalf of Customer or until termination of the Agreement.
   
   iii. Purpose. The purpose of the Processing under this DPA is 6MS’s fulfillment of the services agreed to under the Agreement.
   
   iv. Nature of the Processing. The nature of the Processing under this DPA is the evaluation of Personal Data for 6MS’s services agreed to under the Agreement and the associated purchase, production, and distribution of 6MS products and services. 6MS will also Process Personal Data of Customer employees as part of providing access to 6MS products and services.
   
   v. Type of Personal Data. The types of Personal Data include:
   1. Customer Patient Data: First and last name, age, and gender; case-supporting photographs and radiographs; orthodontic information; and prescription elements; and
   
   2. Customer Employee Data: First and last name; practice name, practice address, practice and personal telephone numbers, and email address; orthodontic treatment experience; and credit card and billing address.
   
   vi. Types of Special Categories of Personal Data. Special categories of Personal Data include Customer patient health data, including case-supporting photographs and radiographs, orthodontic information, and prescription elements.
   
   vii. Categories of Data Subjects. The Data Subjects may include Customer’s patients and employees.
5. Compliance with Laws. Each party will comply with all laws, rules, and regulations applicable to it and binding on it in the performance of this DPA, including GDPR.

2. Customer Instructions
The parties agree that this DPA and the Agreement constitute Customer’s complete and final written instructions to 6MS regarding Processing Personal Data (“Documented Instructions”). Any additional instructions outside the scope of the Documented Instructions require prior written agreement between 6MS and Customer.

3. Confidentiality and Security

1. Confidentiality. 6MS shall treat all Personal Data as confidential and it shall inform all its employees, agents, and/or approved sub-Processors engaged in Processing Personal Data of the confidential nature of Personal Data. 6MS shall ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.
   
   
2. Security. 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, Customer and 6MS shall implement appropriate technical and organizational measures to protect against unauthorized or accidental access, loss, alteration, disclosure, or destruction of Personal Data. 6MS security measures include Internet standard 128 bit encryption, managed firewall protocols, and qualified, secured credential access to data storage systems.  6MS also trains all employees on general commerce data security measures.
   
   
3. Improvements to Security. Technical and organizational measures are subject to technical progress and further development.  Accordingly, 6MS reserves the right to modify its technical and organizational security measures provided that the functionality and security of Personal Data are not degraded.
   
   

4. Contracting with Sub-Processors

1. Authorized Sub-Processors. Customer agrees that 6MS may use sub-Processors to fulfill contractual obligations under this DPA and the Agreement.  A list of the current sub-Processors is set out in the DPA Exhibit.  6MS will notify Customer in advance to any changes to sub-Processors set out in the DPA Exhibit.  Within thirty (30) days of such notice from 6MS, Customer has the right to object to a new sub-Processor based on the reasonable belief that the sub-Processor would cause Customer to violate applicable legal requirements.  Such objection shall be in writing and include Customer’s specific reason for its objection and options to mitigate.  If Customer does not object in such period, 6MS may commission the sub-Processor to Process Personal Data under this DPA and the Agreement.
   
   
2. Sub-Processor Obligations. 6MS will enter into a written agreement with the sub-Processor and impose substantially similar data protection obligations as set out in this DPA on any approved sub-Processor prior to the sub-Processor Processing any Personal Data.  Such agreement will also restrict sub-Processor’s access to Personal Data only to what is necessary to provide contracted services to 6MS in furtherance of meeting 6MS’s obligations to Customer under this DPA and the Agreement. 6MS will remain responsible for the sub-Processor’s compliance with this DPA and for any acts or omissions of the sub-Processor that cause 6MS to breach any of 6MS’s obligations under this DPA.
   
   

5. Assistance to Data Controller

1. Data Subject Rights and Requests. To the extent permitted by law, 6MS shall inform Customer of any requests from a Data Subject regarding such Data Subject’s individual rights to their Personal Data addressed directly to 6MS. 6MS shall assist Customer by appropriate technical and organizational measures, as far as reasonable, in fulfilling Customer’s obligation to respond to requests for exercising Data Subject rights under GDPR.
   
   
2. Security Incidents and Personal Data Breaches. 6MS will notify Customer of a security incident without undue delay after becoming aware of such an incident and take reasonable steps to mitigate the effects and to minimize the damage resulting from the security incident.  The term “security incident” as used in this Section 5.b shall mean any breach of 6MS security leading to an accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
   
   
3. Compliance and Audits. 6MS shall make available to Customer all information necessary to demonstrate compliance with 6MS’s obligations and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer.  Except where Customer has appointed an auditor, each party will bear its own costs for such audits.  Where Customer has appointed an auditor, Customer will be responsible for any fees charged by the appointed auditor for any such audit.  Where appropriate, 6MS shall assist Customer in ensuring compliance with security obligations, preparation of a data protection impact assessment, and where necessary, carrying out consultations with any supervisory authority.
   
   

6. Data Transfers
Data Transfers.By agreeing to this DPA, where the Processing of Personal Data under this DPA and the Agreement requires the transfer of Personal Data from the European Economic Area (“EEA”) to a country without adequate protection as determined by the European authorities, 6MS and Customer are entering into the EU Standard Contractual Clauses as referred to in the DPA Exhibit.  Customer is the “Data Exporter” and 6MS is the “Data Importer.”

7. Return or Destruction of Personal Data
Upon termination or expiration of this DPA or the Agreement, 6MS shall, at the discretion of Customer, either delete, destroy, or return all Personal Data to Customer and destroy or return any existing copies. 6MS shall also notify all sub-Processors supporting its own Processing of Personal Data of the termination of this DPA or the Agreement and shall ensure that all such sub-Processors either destroy Personal Data or return Personal Data to Customer, at the discretion of Customer.

8. Miscellaneous

1. Entire Agreement; Conflict. Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will control.
   
   
2. Governing Law. The DPA shall be governed by the law of Texas.

Attachment 1

EU Standard Contractual Clauses

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

The entity identified as “Customer” in the DPA
(the “data exporter”)

and

SMS OpCo, LLC
6270 Morning Star Drive, Suite 120
The Colony, TX 75056
USA
(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:

1. ‘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;
   
   
2. ‘the data exporter’ means the controller who transfers the personal data;
   
   
3. ‘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;
   
   
4. ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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;
   
   
5. ‘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;
   
   
6. ‘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 sub-processor 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 sub-processor 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:

1. 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;
   
   
2. 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;
   
   
3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
   
   
4. 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;
   
   
5. that it will ensure compliance with the security measures;
   
   
6. 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;
   
   
7. to forward any notification received from the data importer or any sub-processor 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;
   
   
8. 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 sub-processing 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;
   
   
9. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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
   
   
10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer

The data importer agrees and warrants:

1. 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;
   
   
2. 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;
   
   
3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
   
   
4. 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;
   
   
5. 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;
   
   
6. 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;
   
   
7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, 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;
   
   
8. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
   
   
9. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
   
   
10. to send promptly a copy of any sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor 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:

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

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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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 Texas.

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 so long as they do not contradict the Clause.

Clause 11
Sub-processing

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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.
   
   
2. The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
   
   
3. The provisions relating to data protection aspects for sub-processing 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 sub-processing 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 the personal data processing services

1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 sub-processor 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.

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 the Appendix.

Data Exporter

The data exporter is Customer, as defined by the DPA to which these Clauses are attached.

Data Importer

The data importer is SMS OpCo, LLC, a provider of short-term orthodontics products and services.

Data Subjects

The personal data transferred concern the categories of data subjects defined in Section 1.d of the DPA to which these Clauses are attached.

Categories of Data

The personal data transferred concern the categories of data defined in Section 1.d of the DPA to which these Clauses are attached.

Special Categories of Data (if appropriate)

The personal data transferred concern the special categories of data defined in Section 1.d of the DPA to which these Clauses are attached.

Processing Operations

The personal data transferred will be subject to the following basic processing activities (please specify): The processing operations are defined in Section 1.d of the DPA to which these Clauses are attached.

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):

The technical and organizational security measures implemented by the data importer include Internet standard 128 bit encryption, managed firewall protocols, and qualified, secured credential access to data storage systems. The data exporter also trains all employees on general commerce data security measures.

6MS-GDPR-004 Provider Data Processing Agreement Rev A