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Data Processing Agreement ("DPA")

 

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Table of Contents

1. Data/Storage Management and Security

2. Subject Matter, Nature, Purpose and Duration of Processing EU Personal Data

3. EU Personal Data Processing Covenants

4. Subprocessors

5. Client Obligations

6. EU Personal Data Transfer

7. Other Data

8. CCPA Provisions

9. Third-Party Payment Processor - WePay

Schedule I

Schedule II

Schedule III

Appendix 1

Appendix 2

 

 

1. Data/Storage Management and Security

Paytronix shall maintain the security of, and manage, Client’s Account Information in accordance with the obligations of this Agreement. Taking into account the risk of harm, Paytronix shall implement commercially reasonable technical and organizational measures intended to protect Account Information from any Security Incident as further described in this DPA.

Paytronix's servers are located in a main data center (Main Facility) and at a disaster recovery data center (“DR Facility”), with each facility being managed by different, independent data center companies. Both facilities have multiple internet back bones, and multiple power sources with backup generators and backup batteries. Paytronix’s systems within the facilities have redundant systems for each potential failure point. Paytronix has redundant networking equipment (routers, servers, firewalls, and load balancers) that run active-passive and failover automatically within seconds. Transactions are processed by a pool of application servers, so that if one fails, the others take over. More specifically for transactional data, transactional data comes into the Main Facility and into the primary transactional database in real-time. The transactional database is replicated in real-time to a high availability backup server.  The high availability server is then replicated to the DR Facility, to an additional primary transactional database and a high availability database. All databases in both the Main and DR Facilities use RAID (Redundant Array of Independent Disks) disk storage. In addition, the primary transactional database at the Main Facility has its SQL server transaction logs and database backed up nightly. Data backup processes are verified by an SSAE 18 audit each year. Upon request, Paytronix shall provide Client with a copy of all such SSAE 18 reports during the Term of the Agreement.

Paytronix shall be responsible for performing the above data storage management for all Account Information.  Paytronix shall further ensure that in all instances and forms, including, but not limited to database instances, physical media, backup tapes, application servers, application code, and logical platforms, Client’s Account Information (as defined in the Agreement) shall be kept logically separated and instantiated such that it does not interact with other data present within the same physical environment, nor will the data be visible or accessible to other Paytronix clients.  Such logical separations shall be maintained at all times for the duration of the Term of the Agreement.

Paytronix agrees that it will, or will cause any third-party vendor that supports Paytronix in providing the Services and Software provided to Client by Paytronix in accordance with the terms of the Agreement (collectively, the “Offering”) and that have access to Client’s Account Information, to use systems, tools and network security, including firewalls that provide a secure environment, monitor and prevent unauthorized access, redistribution, duplication, modification or uploading of Client’s Account Information. 

If there is any Security Incident of Client’s Account Information, subject to the direction of law enforcement and other limitations to the extent imposed by applicable laws, Paytronix shall promptly notify Client in writing of the details of such Security Incident and, to the extent such Security Incident is attributable to Paytronix’s negligent acts or omissions, Paytronix shall work diligently to address and resolve such Security Incident to Client’s reasonable satisfaction. Any such notice shall be Paytronix’s Proprietary Information.  Client shall have the right at the Client’s expense and at any point during the Term with sixty (60) days written notice to conduct a commercially reasonable audit of Paytronix’s security measures (and as soon as determined necessary by Client in Client’s sole discretion if based on the need for an audit due to any form of Security Incident attributable to Paytronix’s negligent acts or omissions). Auditor will be an independent third party that is familiar with conducting such audits and is subject to Paytronix’s approval, not to be unreasonably withheld. Auditors will comply with Paytronix’s reasonable confidentiality and security procedures.  Paytronix shall reasonably cooperate in such audit(s) and any information disclosed in such audit(s) shall be Paytronix’s Proprietary Information. 

 

2. Subject Matter, Nature, Purpose and Duration of Processing EU Personal Data 

Sections 2 through 6 of this DPA apply to the processing of personal data relating to data subjects located in the European Economic Area and the United Kingdom, or that is otherwise regulated by the GDPR, by Paytronix solely on behalf of Client for the purpose of providing the Offering (“EU Personal Data”).  As between the parties, (i) Client is a controller and Paytronix is a processor on behalf of Client with regard to EU Personal Data or (ii) Client is a processor and Paytronix is a subprocessor on behalf of Client with regard to EU Personal Data.  The subject matter of EU Personal Data processing, including the nature of the processing operations carried out by Paytronix on behalf of Client and Client’s data processing instructions for Paytronix, is set forth on Schedule I to this DPA and as otherwise as provided in reasonable written instructions by Client to Paytronix from time to time.  This DPA shall remain in effect as long as Paytronix carries out EU Personal Data processing operations on behalf of Client or until the termination of the Agreement (and all EU Personal Data has been returned or deleted in accordance with Section 3(g)). The following terms have the meanings given in the General Data Protection Regulation (EU) 2016/679 (“GDPR”): “controller”, “personal data”, “processor”, “data subject” and “process”. 

 

3. EU Personal Data Processing Covenants

In processing EU Personal Data hereunder, Paytronix shall:

    1. process EU Personal Data only on documented instructions from Client, unless otherwise required to do so by applicable law, in which case Paytronix will inform Client of that legal requirement before processing, unless applicable law prohibits Paytronix from informing Client. For the avoidance of doubt, this DPA shall constitute Client’s documented instructions to Paytronix to process EU Personal Data in connection with Paytronix’s provision of the Offering to Client;
    2. use commercially reasonable efforts intended to ensure that persons authorized to process EU Personal Data hereunder have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality or are subject to ethical rules of responsibility that include confidentiality;
    3. 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, implement commercially reasonable technical and organizational measures intended to meet the security requirements described in Article 32 of the GDPR;
    4. taking into account the nature of the processing, use commercially reasonable efforts to assist Client, at Client’s expense, by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Client’s obligation to respond to requests for exercising the data subjects’ rights with respect to their EU Personal Data under the GDPR and any applicable national implementing legislation, regulations and secondary legislation relating to the processing of personal data (the “Data Protection Laws”);
    5. taking into account the nature of processing and the information available to Paytronix, use commercially reasonable efforts to assist Client, at Client’s expense, in ensuring compliance with Client’s obligations described in Articles 32 through 36 of the GDPR;
    6. notify Client promptly if Paytronix becomes actually aware of a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, EU Personal Data (an “EU Personal Data Incident”), provided that the provision of such notice by Paytronix shall not be construed as an acknowledgement of fault or liability with respect to any such EU Personal Data Incident;
    7. at the choice of Client, delete or return all EU Personal Data to Client within thirty (30) days after the end of the provision of the Offering to Client and delete existing copies unless applicable law requires retention of EU Personal Data; and
    8. make available upon Client’s reasonable request information reasonably necessary to demonstrate material compliance with the obligations laid down in this DPA and allow for and contribute to audits (each, an “Audit”), at Client’s expense, including inspections of processing facilities under Paytronix’s control, conducted by Client or another auditor chosen by Client (an “Auditor”), during normal business hours, no more frequently than once during any twelve (12) month period, and upon reasonable prior notice, provided that no Auditor shall be a competitor of Paytronix, and provided further that in no event shall Client have access to the information of any other client of Paytronix and the disclosures made pursuant to this Section 3(h) (“Audit Information”) shall be held in confidence as Paytronix’s confidential information and subject to any confidentiality obligations in the Agreement, and provided further that no Audit shall be undertaken unless or until Client has requested, and Paytronix has provided, documentation pursuant to this Section 3(h) and Client reasonably determines that an Audit remains necessary to demonstrate material compliance with the obligations laid down in this DPA.  Without limiting the generality of any provision in the Agreement, Client shall employ the same degree of care to safeguard Audit Information that it uses to protect its own confidential and proprietary information and in any event, not less than a reasonable degree of care under the circumstances, and Client shall be liable for any improper disclosure or use of Audit Information by Client or its agents. 

 


4. Subprocessors 

Client hereby grants Paytronix general authorization to engage subprocessors to assist Paytronix in processing EU Personal Data as set out in this DPA.  Paytronix shall enter into contractual arrangements with such subprocessors requiring the same level of data protection compliance and information security as that provided for herein with respect to EU Personal Data.  Client hereby consents to the processing of EU Personal Data by, and the disclosure and transfer of EU Personal Data to, the subprocessors listed on Schedule II to this DPA.  Paytronix shall inform Client of any intended changes concerning the addition or replacement of subprocessors at least ten (10) calendar days before the new subprocessor processes EU Personal Data.  Client may object to such changes in writing within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection (an “Objection”). In the event of an Objection, the parties will discuss such concerns in good faith with the intention of achieving a resolution. If the parties are not able to achieve a resolution as described in the previous sentence, Client, as its sole and exclusive remedy, may terminate the Agreement for convenience, on the condition that Client provides written notice to Paytronix within five (5) calendar days of being informed of the engagement of the subprocessor. Client shall not be entitled to any refund of fees paid prior to the date of any termination pursuant to this Section 4. 

 

5. Client Obligations 

Client agrees that (i) it shall comply with its obligations as a controller under the GDPR in respect of its processing of EU Personal Data and any processing instructions it issues to Paytronix as referred to in Section 3(a); (ii) it has provided notice and obtained all consents and rights required by the Data Protection Laws for Paytronix to process EU Personal Data pursuant to the Agreement and this DPA; and (iii) the processing of EU Personal Data by Paytronix upon the documented instructions of Client under Section 3(a) shall have a lawful basis of processing pursuant to Article 6 of the GDPR.  If Client is a processor, Client represents and warrants to Paytronix that Client’s instructions and actions with respect to EU Personal Data, including its appointment of Paytronix as another processor, have been duly authorized by the relevant controller. Client shall indemnify, defend and hold Paytronix harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Client’s violation of this Section 5. Notwithstanding anything to the contrary in the Agreement, Client’s indemnification obligations under this Section 5 shall not be subject to any limitations of liability set forth in the Agreement. 

 

6. EU Personal Data Transfer

Client hereby consents to the transfer of EU Personal Data to, and the processing of EU Personal Data in, the United States of America. The parties hereby enter into the Standard Contractual Clauses for Processors, as approved by the European Commission under Decision 2010/87/EU, attached hereto as Schedule III (the “SCCs”) and made a part of this DPA in their entirety. 

 

7. Other Data

Notwithstanding anything to the contrary in the Agreement (including this DPA), Client acknowledges that Paytronix shall have a right to use and disclose data relating to representatives of Client that relates to the operation, support and/or use of the Offering for Paytronix’s legitimate business purposes, such as product development and sales and marketing. To the extent any such data is considered personal data under the GDPR, Paytronix is the controller of such data and accordingly shall process such data in accordance with Paytronix’s privacy policy and the GDPR. 

 

8. CCPA Provisions 

This Section 8 shall apply from and after the CCPA Effective Date (as defined below) and shall not apply before such CCPA Effective Date.

a. In this Section 8:

ii. “CCPA” means the California Consumer Privacy Act of 2018.

iii. “CCPA Effective Date” means January 1, 2020 or the date the CCPA becomes enforceable, whichever is later.

iiii. “Consumer Information” means any personal information that is processed by Paytronix solely on behalf of the Client.

ivi. “Medical Information” means any Consumer Information, in electronic or physical form, regarding a California resident’s medical history or medical treatment or diagnosis by a health care professional.

vi. “Health Insurance Information” means any Consumer Information, in electronic or physical form, regarding a California resident’s medical history or medical treatment or diagnosis by a health care professional.

vii. “Sensitive Consumer Information” means any Consumer Information that constitutes either of the following: (A) California resident’s first name or first initial and his or her last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted: (I) social security number; (II) driver’s license number or California identification card number; (III) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an California resident’s financial account; (IV) Medical Information; or (V) Health Insurance Information; or (B) a username or email address in combination with a password or security question and answer that would permit access to an online account. Sensitive Consumer Information does not include publicly available Consumer Information that is lawfully made available to the general public from federal, state, or local government records.

viii. The following terms have the meanings given in the CCPA: “personal information”, “processing”, “service provider”, “sell”, “selling”, “sale” and “sold”. 

b. From and after the CCPA Effective Date, except as otherwise required by applicable law, Paytronix shall: 

ii. implement and maintain commercially reasonable security procedures and practices appropriate to the nature of the Sensitive Consumer Information (if any) intended to protect such Sensitive Consumer Information from unauthorized access, destruction, use, modification, or disclosure;

iii. not retain, use or disclose Consumer Information for any purpose outside the scope of the business relationship of the parties and other than for the specific purpose of performing the Offering (including retaining, using or disclosing the Consumer Information for a commercial purpose other than providing the Offering) or as otherwise permitted by the CCPA as applicable to service providers;

iiii. not collect, sell or use Consumer Information except as reasonably necessary to provide the Offering;

ivi. to the extent necessary, use commercially reasonable efforts to assist Client, at Client’s expense, in Client’s fulfilment of Client’s obligation to respond to California residents’ requests to exercise rights with respect to their Consumer Information under the CCPA; and

vi. use commercially reasonable efforts to assist Client, at Client’s expense, to the extent necessary to support Client’s compliance with Client’s obligations under the CCPA.

c. Paytronix understands the restrictions provided in Section 8(b)(ii) and (iii) and with comply with them.

d. From and after the CCPA Effective Date, Client agrees that (i) it shall comply with its obligations under the CCPA in respect of its processing of Consumer Information and any processing instructions it issues to Paytronix; and (ii) it has provided notice (including pursuant to Section 1798.135 of the CCPA) and obtained all consents and rights required by the CCPA for Paytronix to process Consumer Information pursuant to the Agreement and this DPA. Client shall indemnify, defend and hold Paytronix harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Client’s violation of this Section 8(d). Notwithstanding anything to the contrary in the Agreement, Client’s indemnification obligations under this Section 8(d) shall not be subject to any limitations of liability set forth in the Agreement.

e. Nothing DPA shall prevent Paytronix from engaging its own service providers in the processing of Consumer Information, provided that Paytronix shall enter into contractual arrangements with such service providers requiring a substantially similar level of data protection compliance and information security as that provided in this Section 8 with respect to Consumer Information.

 

9.  Third-Party Payment Processor - WePay

Paytronix offers payments through WePay, Inc. (“WePay”), a third-party payment processor. In order for you to use WePay’s payment processing services, you must register with WePay as a merchant. The WePay Terms of Service explain that process and are available here: https://go.wepay.com/terms-of-service-us. The WePay Privacy Policy is available here: https://go.wepay.com/privacy-policy. By accepting this agreement with Paytronix, you agree that you have reviewed the WePay Terms of Service and Privacy Policy for the country in which you are located and agree to them. If you have questions regarding the WePay Terms of Service or Privacy Policy, please refer to the WePay website www.wepay.com or contact WePay at https://support.wepay.com/hc/en-us.”

 

Schedule I

Subject Matter, Nature, Purpose and Duration of the Processing of EU Personal Data

1. Type of EU Personal Data: 

For Client’s Customers:  Personal data including details of the customers of the Client, including name, address, email address, mobile number, date of birth, and transactional information, such as items purchased, amount spent, location and time where purchase took place and marketing, product, and other preference information. 

For Representatives of Client:  Personal data of representatives of Client, including name, business contact information, username, and password. 

2. Categories of Data Subject: 

Customers of Client who are members of the Client’s program(s) enabled by the Services; representatives of Client. 

3. Purposes for which EU Personal Data is Processed: 

To provide the Offering to Client by Paytronix in accordance with the Agreement. 

4. Nature of the Processing: 

The EU Personal Data will be subject to basic processing, including but not limited to collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing the Offering by Paytronix to Client in accordance with the terms of the Agreement. 

 

 

Schedule II

Sub-processors involved with Personal Information

 

Company Purpose
Amazon Web Services  Cloud hosting and related services 
Apple Pay Payment system
Azure (Microsoft) Backup and Disaster Recover
Cake (Sysco) POS Integration Partner
Custom Business Solutions Customer Support services
Data Ladder Cloud security
Datadog Cloud security
eCard Gift card manufacturer
eGenuity POS Integration partner
ElasticSearch  Data management
FiveTran  Data management
Forter  Fraud prevention 
GooglePay  Payment system 
Internap Network Communications  Data Center hosting 
LogMeln USA Inc  Customer Support tool 
Looker Data Sciences Inc.  Data analysis 
Mailgun Technologies  Email services 
Media Fire  File transfer services 
Mineral Tree Accounts payable services
NCR  POS integration partner 
PayPal (PayPal Payment Pro)  Payment system 
Plasticard Locktech International  Card manufacturing 
POSitouch  POS Integration partner 
Screen Connect  Customer Support tool 
SendGrid  Email services 
Silicon Valley Bank  Payment processing 
SINCH  Telecommunication services 
Snowflake Computing  Data Analysis 
Spreedly  Payment system 
Sterling Card Services  Card manufacturing 
Toast  POS Integration partner 
Verifone Payment system hardware
Versapay Accounts receivable services
WePay (a Chase Company) Online payment services
   
   

 

 

Schedule III 

STANDARD CONTRACTUAL CLAUSES (Processors)

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

Client (the ‘data exporter’)

And

Paytronix Systems, Inc. (the ‘data importer’) each a ‘party’; together ‘the parties’, 

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

 

Clause 1

Definitions

For the purposes of the Clauses:

(a)     ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data 1; 

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

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

(d)     ‘the 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; 

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

(f)   ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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:

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

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

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

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

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

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

(g)   to forward any notification received from the data importer or any 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; 

(h)   to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for 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; 

(i)   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 

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

Clause 5

Obligations of the data importer 2

The data importer agrees and warrants: 

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

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

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

(d)   that it will promptly notify the data exporter about: 

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; 

any accidental or unauthorized access; and 

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

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

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

(g)to make available to the data subject upon request a copy of the Clauses, or any existing contract for 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;

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

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

(j)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: 

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

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

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

Clause 8

 Cooperation with supervisory authorities

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

 2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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 the Member State in which the data exporter is established.

 

Clause 10

Variation of the contract

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

Clause 11

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 Clauses3. 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 personal data-processing services

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. 

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

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter

The data exporter is using Paytronix services:

Service recipient of data importer

Data importer

The data importer is providing

Service provider for data exporter

Data subjects

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

Customers who are members of the data exporter’s program(s) enabled by the Services; representatives of data exporter

Categories of data

The personal data transferred concern the following categories of data:

For Data Exporter’s Customers:  Personal data including details of the data exporter’s customers, which may include name, address, email address, mobile number, date of birth, and transactional information, such as items purchased, amount spent, location and time where purchase took place and marketing, product, and other preference information.

For Representatives of Data Exporter:  Personal data of representatives of data exporter, including name, business contact information, username, and password.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data:

None presently contemplated by this arrangement.

Processing operations

The personal data transferred will be subject to the following basic processing activities:

The personal data will be subject to basic processing, including but not limited to collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing the Offering to data exporter in accordance with the terms of the Agreement.

 

Appendix 2

to the Standard Contractual Clauses

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

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, the data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the risk.


[1]      Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.

[2]      Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defense, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements. 

[3]      This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

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