This Data Processing Agreement (the “Agreement”) is executed by and between you (hereinafter referred to as ‘Controller’, which expression shall unless it is repugnant to the meaning or context thereof be deemed to mean and include its legal heirs, executors, administrators, legal representatives, successors and permitted assigns of the Controller) and PayerMax (hereinafter referred to as ‘Processor’, which expression shall unless it is repugnant to the meaning or context thereof be deemed to mean and include its legal heirs, executors, administrators, legal representatives, successors and permitted assigns of the Processor). This agreement is part of our Service Agreement. By using PayerMax Services, you signify your assent to this data protection policy, as revised from time to time.
The Controller and Processor shall be collectively referred to as the ‘Parties’, and individually referred to as a ‘Party’.
NOW, THEREFORE, for good and valuable consideration the sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
1.1“Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
1.2“Anonymous Data” means Personal Data that has been processed in such a manner that it can no longer be attributed to an identified or identifiable natural person.
1.3“Authorized Employee” means an employee of Processor who has a need to know or otherwise access Personal Data to enable Processor to perform their obligations under this Addendum or the Agreement.
1.4“Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Personal Data to enable Processor to perform its obligations under this Agreement.
1.5“Data Subject” means an identified or identifiable person to whom Personal Data relates.
1.6“Instruction” means a direction, either in writing, in textual form (e.g. by e-mail) or by using a software or online tool, issued by Controller to Processor and directing Processor to Process Personal Data.
1.7“Personal Data” means any information relating to Data Subject which is subject to Data Protection Laws (defined below) and which Processor Processes on behalf of Controller.
1.8“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored, or otherwise processed.
1.9“Process” or “Processing” means any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
1.10“Services” shall have the meaning set forth in the Agreement.
1.11“Supervisory Authority” means an independent public authority which is established by a member state of the European Union, Iceland, Liechtenstein, or Norway.
2.1The rights and obligations of the Controller with respect to this Processing are described herein. Controller shall, in its use of the Services, at all times Process Personal Data, and provide instructions for the Processing of Personal Data, in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679), and other enforceable guidelines and codes of conduct issued by a local regulatory authority which is responsible for the management of the application of Data Protection Laws ( “Data Protection Laws”). Controller shall ensure that its instructions comply with all laws, rules and regulations applicable in relation to the Personal Data, and that the Processing of Personal Data in accordance with Controller’s instructions will not cause Processor to be in breach of the Data Protection Laws. Controller is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Processor by or on behalf of Controller, (ii) the means by which Controller acquired any such Personal Data, and (iii) the instructions it provides to Processor regarding the Processing of such Personal Data. Controller shall not provide or make available to Processor any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Processor from all claims and losses in connection therewith. This Agreement does not apply to Personal Data for which Processor is a controller.
2.2Processor shall not Process Personal Data (i) for purposes other than those set forth in the Agreement, (ii) in a manner inconsistent with the terms and conditions set forth in this Agreement or any other documented instructions provided by Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest and (iii) in violation of the Data Protection Laws. Controller hereby instructs Processor to Process Personal Data in accordance with the foregoing and as part of any Processing initiated by Controller in its use of the Services.
2.3Following completion of the Services, at Controller’s choice, Processor shall return or delete the Personal Data, unless further storage of Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Processor shall take measures to block such Personal Data from any further Processing (except to the extent necessary for its continued hosting or Processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control.
3.1Processor shall take commercially reasonable steps to ensure the reliability and appropriate training of any Authorized Employee.
3.2Processor shall ensure that all Authorized Employees are made aware of the confidential nature of Personal Data and have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their engagement with Processor, any Personal Data except in accordance with their obligations in connection with the Services.
3.3Processor shall take commercially reasonable steps to limit access to Personal Data to only Authorized Employees.
4.1Controller acknowledges and agrees that Processor may (1) engage its affiliates and the Authorized Sub-Processors listed in Exhibit C to this Agreement to access and Process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the Processing of Personal Data. By way of this Agreement, Controller provides general written authorization to Processor to engage sub-processors as necessary to perform the Services.
4.2A list of Processor’s current Authorized Sub-Processors (the “List”) will be made available to Controller, either attached hereto, at a link provided to Controller, via email or through another means made available to Controller. Such List which may be updated by Processor from time to time. The List may provide a mechanism to subscribe to notifications of new Authorized Sub-Processors and Controller agrees to subscribe to such notifications where available. At least ten (10) days before enabling any third party other than Authorized Sub-Processors to access or participate in the Processing of Personal Data, Processor will add such third party to the List. Controller may reasonably object to such an engagement on legitimate grounds by informing Processor in writing within ten (10) days of receipt of the aforementioned notice by Controller. Controller acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Processor from offering the Services to Controller.
4.3If Controller reasonably objects to an engagement in accordance with Section 4.2, and Processor cannot provide a commercially reasonable alternative within a reasonable period of time, Processor may terminate this Agreement. Termination shall not relieve Controller of any fees owed to Processor under the Agreement.
4.4If Controller does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Processor, that third party will be deemed an Authorized Sub-Processor for the purposes of this Agreement.
4.5Processor will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Processor under this Agreement with respect to the protection of Personal Data. In case an Authorized Sub-Processors fails to fulfill its data protection obligations under such written agreement with Processor, Processor will remain liable to Controller for the performance of the Authorized Sub-Processor’s obligations under such agreement.
5.1Taking 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, Processor shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Processing Personal Data.
6.1The parties agree that Processor may transfer Personal Data processed under this Agreement outside the European Economic Area (“EEA”) or Switzerland as necessary to provide the Services. If Processor transfers Personal Data protected under this Agreement to a jurisdiction for which the European Commission has not issued an adequacy decision, Processor will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
7.1Processor shall, to the extent permitted by law, notify Controller upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Processor receives a Data Subject Request in relation to Controller’s data, Processor will advise the Data Subject to submit their request to Controller and Controller will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Controller is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of Processing, or withdrawal of consent to Processing of any Personal Data are communicated to Processor, and for ensuring that a record of consent to Processing is maintained with respect to each Data Subject.
7.2Processor shall, at the request of the Controller, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Controller in complying with Controller’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Controller is itself unable to respond without Processor’s assistance and (ii) Processor is able to do so in accordance with all applicable laws, rules, and regulations. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8.1Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance where necessary for Controller to comply with its obligations under the Data Protection Laws to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Controller does not otherwise have access to the relevant information. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8.2Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance with respect to Controller’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the Data Protection Laws. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8.3Processor shall maintain records sufficient to demonstrate its compliance with its obligations under this Agreement, and retain such records for a period of three (3) years after the termination of the Agreement. Controller shall, with reasonable notice to Processor, have the right to review, audit and copy such records at Processor’s offices during regular business hours.
8.4Upon Controller’s request, Processor shall, no more than once per calendar year, either (i) make available for Controller’s review copies of certifications or reports demonstrating Processor’s compliance with prevailing data security standards applicable to the Processing of Controller’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Controller or its authorized representative, upon reasonable notice and at a mutually agreeable date and time, to conduct an audit or inspection of Processor’s data security infrastructure and procedures that is sufficient to demonstrate Processor’s compliance with its obligations under this Agreement, provided that Controller shall provide reasonable prior notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Processor’s business. Controller shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Processor for any time expended for on-site audits.
8.5Processor shall immediately notify Controller if an instruction, in the Processor’s opinion, infringes the Data Protection Laws or Supervisory Authority.
8.6In the event of a Personal Data Breach, Processor shall, without undue delay, inform Controller of the Personal Data Breach and take such steps as Processor in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Processor’s reasonable control).
8.7In the event of a Personal Data Breach, Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance necessary for Controller to comply with its obligations under the Data Protection Laws with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
8.8The obligations described in Sections 8.5 and 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Controller. Processor’s obligation to report or respond to a Personal Data Breach under Sections 8.5 and 8.6 will not be construed as an acknowledgement by Processor of any fault or liability with respect to the Personal Data Breach.
9.1The total liability of each of Controller and Processor (and their respective employees, directors, officers, affiliates, successors, and assigns), arising out of or related to this Agreement, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement.