Data Protection Addendum

This Data Protection Addendum (“Addendum”) forms part of any agreement for Services between Delego Software ULC (“Processor”) and you and the entity you represent (Agreement”) which is our customer (“Controller”), acting on its own behalf and as agent for each Controller Affiliate and is effective and applies when Processor Processes Personal Data within scope of the GDPR as part of the Services.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.

In consideration of the mutual obligations set out herein, the Parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum.

1.Definitions
1.1In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
 1.1.1“Applicable Laws” means (a) European Union or Member State laws to which the Controller or the Processor is subject; and (b) any other applicable law to which the Controller or the Processor is subject;
 1.1.2“Controller Affiliate” means an Affiliate of Controller;
 1.1.3“Controller Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of the Controller pursuant to or in connection with the Agreement;
 1.1.4“Contracted Processor” means Processor, Subprocessor, Subprocessor Affiliate, Sub-Subprocessor, Sub-Subprocessor Affiliate, etc.;
 1.1.5“Data Protection Laws” means GDPR and, to the extent applicable, the data protection or privacy laws of any other country;
 1.1.6“EEA” means the European Economic Area;
 1.1.7“GDPR” means the EU General Data Protection Regulation 2016/679, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time;
 1.1.8“Processor” means any person (including any Third-Party and any Processor Affiliate, but excluding an employee of Processor or any of its sub-contractors) appointed by or on behalf of the Controller Process Personal Data on behalf of the Controller in connection with the Agreement;
 1.1.9“Restricted Transfer” means:
  1.1.9.1a transfer of Controller Personal Data from the Controller to a Contracted Processor; or
  1.1.9.2an onward transfer of Controller Personal Data from a Contracted Processor to another Contracted Processor, or between two establishments of a Contracted Processor,
  in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 6.4.3 or 12 below;
  For the avoidance of doubt: (a) without limiting the generality of the foregoing, the Parties to this Addendum intend that transfers of Personal Data from the UK to the EEA or from the EEA to the UK, following any exit by the UK from the European Union shall be a Restricted Transfers for such time and to such extent that such transfers would be prohibited by UK or EU Data Protection Laws (as the case may be) in the absence of the Standard Contractual Clauses to be established under section 6.4.3 or 12 or an adequacy ruling of the Commission at which time sub-section (b) shall apply to any UK transfer of Personal Data; and (b) where a transfer of Personal Data is of a type authorized by Data Protection Laws in the exporting country, for example in the case of transfers from within the EEA to a country (such as Switzerland and Canada which, as long as applicable, benefit from a ruling of adequacy pursuant to articles 45(9) and 45(3) of the GDPR) or scheme (such as the US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer.
 1.1.10“Services” means the services and other activities to be supplied to or carried out by or on behalf of Processor for the Controller pursuant to the Agreement;
 1.1.11“Standard Contractual Clauses” means the contractual clauses set out in Annex 3, as amended or replaced from time to time by the Commission or such other competent authority as applicable and pursuant to section 13.4;
 1.1.12“Subprocessor” means any person (including any Third-Party and any Subprocessor Affiliate, but excluding an employee of Subprocessor or any of its sub-contractors) appointed by or on behalf of the Processor or any Processor Affiliate to Process Personal Data on behalf of the Controller in connection with the Agreement;
 1.1.13“Subprocessor Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Subprocessor, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise; and
 1.1.14“Subprocessor Group Member” means Subprocessor and/or any Subprocessor Affiliate.
1.2The terms, “Commission“, “Data Subject“, “Member State“, “Personal Data“, “Personal Data Breach“, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.3The terms, “Controller” and “Processor” shall, in addition to the definition set out in this Addendum, be supplemented by the meanings as set out in the GDPR.
1.4The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2.Authority
 Each of Processor and Controller warrants and represents to the other that it has all the authority comply with this Addendum.
3.Processing of Controller Personal Data
3.1Processor shall not Process Controller Personal Data other than on the Controller’s written instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform the Controller of that legal requirement before the relevant Processing of that Controller Personal Data.
3.2Each Controller for its own benefit and on behalf of each Controller Affiliate:
 3.2.1instructs Processor (and authorizes Processor to instruct each Subprocessor and each Subprocessor Affiliate) to:
  3.2.1.1Process Controller Personal Data; and
  3.2.1.2in particular, transfer Controller Personal Data to any country or territory,
  as reasonably necessary for the provision of the Services and consistent with the Agreement, Data Protection Laws, and this Addendum;
 3.2.2warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instructions set out in section 3.2.1 on behalf of each relevant Controller Affiliate;
 3.2.3warrants and represents that all of its instructions to any Contracted Processor will, at all times, comply with Data Protection Laws; and
 3.2.4agrees that the Processor can refuse any instructions if same are not, in the reasonable opinion of the Processor, in compliance with Applicable Laws and/or require unreasonable efforts and/or expenditures by the Processor.
3.3Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Controller Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Subject to section 3.2.4, Controller may, upon 60 days prior written notice, make reasonable amendments to Annex 1 by written notice to Processor from time to time as Controller reasonably considers necessary to meet those requirements. For clarity, nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Addendum.
4.Processor Personnel
 Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Controller Personal Data through the Processor, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Controller Personal Data, as necessary for the purposes of the Agreement, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5.Security
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 in relation to the Controller Personal Data implement appropriate technical and organizational measures designed to ensure a level of security appropriate to that risk, which are set out in Annex 2 to this Addendum, which takes into account the particular risks that are presented by Processing, in particular, from a Personal Data Breach.
5.2The Controller has assessed any security measures specifically agreed in the Agreement and in this Addendum and the Controller confirms that it is satisfied with the security measures in place and agrees that it is responsible if these security measures do not meet the GDPR standard of appropriateness.
6.Subprocessing
6.1The Controller authorizes Processor to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors (and sub-subprocessors with regards to Subprocessors) in accordance with this section 6 and, if applicable, any restrictions in the Agreement.
6.2The Processor may continue to use those Contracted Processors already engaged and that are planned to be engaged by the Processor as at the date of this Addendum subject to Processor, in each case, meeting the obligations set out in section 6.4.
6.3Processor shall make available to Controller, through the webpage described in Section 6.6, a list of Subprocessors and provide Controller with a mechanism to obtain prior written notice of the appointment of any new Subprocessor via the notice mechanism described in Section 6.6. Such updates will include full details of the Processing to be undertaken by the Subprocessor. If, within 10 days of receipt of that notice, Controller notifies Processor in writing of any objections (on reasonable grounds) to the proposed appointment, Processor shall not appoint (or disclose any Controller Personal Data) to that proposed Subprocessor until reasonable steps have been taken to address the objections raised by the Controller and Controller has been provided with a reasonable written explanation of the steps taken. If, within a further 10 days of receipt of the written explanations of the steps taken, the Controller, acting reasonably, is still not satisfied that the steps taken meet Data Protection Laws, acting reasonably and only based on reasonable grounds pursuant to applicable Data Protection Laws, the Controller may by written notice to Processor terminate the Agreement on 90 days’ prior written notice to Processor to the extent that it relates to the Services which require the use of the proposed Subprocessor and such termination shall be in accordance with the termination provisions set out in the Agreement. For clarity, such termination shall not constitute a termination for cause under, or a termination for Delego’s material breach under Section 13.1 of, the Agreement.
6.4With respect to each relevant Contracted Processor, Processor shall (and shall use reasonable measures to procure that each Contracted Processor shall):
 6.4.1before the relevant Contracted Processor first Processes Controller Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the relevant Contracted Processor is capable of providing the level of protection for Controller Personal Data as required by the Addendum;
 6.4.2in accordance with Data Protection Laws, take reasonable steps to ensure that the arrangement between the two relevant Contracted Processors, is governed by a written contract including terms which offer substantially equivalent protection for Controller Personal Data as those set out in this Addendum; and
 6.4.3subject to section 12 and as reasonably determined by the Processor with respect to which approach the Processor should take in the relevant circumstance, if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand the relevant Contracted Processor; and on the other hand the (i) Controller or (ii) Controller Affiliates and the Controller shall procure that each Controller Affiliate to any such Standard Contractual Clauses co-operates with their population and execution, as applicable.
6.5Subject to Section 6.6, Processor shall, in accordance with Applicable Laws, take reasonable steps to ensure that each relevant Contracted Processor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Controller Personal Data carried out by that relevant Contracted Processor, as if it were party to this Addendum in place of Processor.
6.6In relation to any Contracted Processor that Processor engages to store Controller Personal Data using the Contracted Processor’s cloud infrastructure, Processor’s obligations under section 6.5 of this Addendum shall be satisfied by: (i) Processor exercising its rights under its agreement with such Contracted Processor for Controller’s benefit at Controller’s reasonable request and cost; and (ii) Processor demonstrating Processor’s environment and/or operations to Controller at such Contracted Processor in order for Controller to ensure that such Contracted Processor’s security and privacy configurations and controls (including policies and procedures) demonstrate compliance with this Addendum and applicable Data Protection Law.
6.7The Data Processor will list the approved Subprocessors at delegopayments.com/gdpr/subprocessors-list. The Controller can, at any time subscribe to email notifications to be alerted of new Subprocessors for the relevant Service and any authorization of Subprocessor shall be in accordance with this DPA.
7.Data Subject Rights
7.1Taking into account the nature of the Processing, Processor shall assist the Controller by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller’s obligations, as reasonably understood by Controller, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2Processor shall:
 7.2.1as soon as reasonably possible, upon receipt of an applicable Data Subject request, notify Controller if any Contracted Processor receives an applicable request from a Data Subject under any Data Protection Law in respect of Controller Personal Data; and
 7.2.2in accordance with Applicable Laws, take reasonable steps to ensure that the Contracted Processor does not respond to that request except on the documented instructions of Controller or as required by Applicable Laws to which the Contracted Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Controller of that legal requirement before the Contracted Processor responds to the request.
8.Personal Data Breach
8.1Processor shall notify Controller without undue delay upon any relevant Contracted Processor becoming aware of a Personal Data Breach affecting Controller Personal Data, providing Controller with sufficient information to allow Controller to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2Processor shall (and shall procure that each relevant Contracted Processor ), at the reasonable time and material costs of the Controller pursuant to the then current rate cards between the Processor and Controller and if there is no established rate card, then the standard rates of the Processor, co-operate with Controller and take such reasonable commercial steps as are directed by Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9.Data Protection Impact Assessment and Prior Consultation
 Processor shall (and shall procure that each relevant Contracted Processor), at the reasonable time and material costs of the Controller pursuant to the then current rate cards between the Processor and Controller and if there is no established rate card, then the standard rates of the Processor, provide reasonable assistance to the Controller with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Controller Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10.Deletion or return of Controller Personal Data
10.1Subject to sections 10.2 and 10.3 Processor shall (and shall procure that each relevant Contracted Processor) promptly and in any event within 60 days, after the date of cessation of any Services involving the Processing of Controller Personal Data (the “Cessation Date“), delete and procure the deletion of all copies of those Controller Personal Data at the Processor’s sole costs.
10.2Subject to section 10.3 prior to the Cessation Date as set out in section 10.1 and subject to the Controller reimbursing the Processor the reasonable time and material costs pursuant to the then current rate cards between the Processor and Controller and if there is no established rate card, then the standard rates of the Processor, Controller may in its absolute discretion by written notice to Processor require Processor to (a) return a complete copy of all Controller Personal Data to Controller by secure file transfer in such format as is reasonably agreed upon between Processor and Controller; and (b) delete and procure the deletion of all other copies of Controller Personal Data Processed by any Contracted Processor, provided however, that Processor may retain documentation in accordance with its internal document retention policy, so long as this does not violate applicable Data Protection Laws. The Processor shall comply with any such written request within 60 days of the Cessation Date.
10.3Each Contracted Processor may retain Controller Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that any relevant Contracted Processor shall ensure the confidentiality of all such Controller Personal Data and shall, in accordance with Applicable Laws, take reasonable steps to ensure that such Controller Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Law requiring its storage and for no other purpose.
10.4After the Cessation Date, upon written request by Controller, Processor shall provide written certification to Controller that it and each relevant Contracted Processor has fully complied with this section 10 within 90 days of such written request.
11.Audit rights
11.1Subject to sections 11.2 to 11.3, Processor shall make available to Controller on written request all information reasonably necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, at the sole cost of the Controller, including inspections, by any auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Processor provided any on premises audits shall only be permitted if there was an actual breach caused by the Processor or the Controller has reasonable grounds to suspect that a material breach of this Addendum has occurred due to the actions or omissions of the Processor and such audit request will not breach any confidentiality and/or security of the Processor.
11.2Information and audit rights of the Controller only arise under section 11.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
11.3Except if section 11.3.2 applies, Controller undertaking an audit, at the Controller’s sole cost, shall give Processor no less than 60 business days prior notice of any audit or inspection to be conducted under section 11.1 and shall ensure that its mandated auditors will not cause any material damage, injury, and/or disruption to the Processor’s premises, equipment, personnel and business while its auditing personnel are on those premises in the course of such an audit or inspection. A Processor need not give access to its premises for the purposes of such an audit or inspection:
 11.3.1to any individual unless he or she produces reasonable evidence of identity and authority;
 11.3.2outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Controller undertaking an audit has given notice to Processor that this is the case before attendance outside those hours begins; or
 11.3.3for the purposes of more than one audit or inspection, in respect of the Processor, in any 12-month rolling basis, except for any additional audits or inspections which:
  11.3.3.1Controller undertaking an audit reasonably considers necessary because of genuine concerns as to Processor’s compliance with this Addendum; or
  11.3.3.2the Controller is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Controller undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Processor of the audit or inspection.
12.Restricted Transfers
12.1Subject to section 12.3, the Controller (as “data exporter“) and each Contracted Processor, as appropriate, (as “data importer“) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from the Controller to that Contracted Processor.
12.2The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:
 12.2.1the data exporter becoming a party to them;
 12.2.2the data importer becoming a party to them; and
 12.2.3commencement of the relevant Restricted Transfer.
12.3Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
12.4Subject to section 6.4.3 and as reasonably determined by the Processor with respect to which approach it should take in the relevant circumstance, if it reasonably chooses the approach set out in this section 12.4 with respect to Restricted Transfers, before the commencement of any Restricted Transfer to a Contracted Processor, Processor may enter into the Standard Contractual Clauses with the Controller on behalf of the relevant Contracted Processor. If the Processor chooses to proceed pursuant to this section, Processor warrants and represents that Processor’s entry into the Standard Contractual Clauses under section 12.1, and agreement to variations to those Standard Contractual Clauses made under section 13.4.1, for and on behalf of that Contracted Processor will have been duly and effectively authorized (or subsequently ratified) by that Contracted Processor.
13.General Terms
 Governing law and jurisdiction
13.1Without prejudice to sections 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
 13.1.1if required by Data Protection Laws or the Standard Contractual Clauses, the Parties to this Addendum hereby submit to the choice of jurisdiction, with respect to all matters and obligations arising out of or in connection with this Addendum of the country or territory stipulated for this purpose, if applicable, in the Standard Contractual Clauses or if the Standard Contractual Clause are not required, the following EU member state law from which (if applicable, among others) some of the Controller Personal Data is being transferred: Republic of Ireland; and
 13.1.2otherwise, the governing law and choice of jurisdiction as set out in the Agreement shall apply.
 Order of precedence
13.2Nothing in this Addendum reduces Processor’s obligations under the Agreement in relation to the protection of Personal Data or permits Processor to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this Addendum, the Agreement, and any other agreement the following order of precedence shall apply:
 1.the Standard Contractual Clauses;
 2.the Addendum; and
 3.the Agreement.

IN WITNESS WHEREOF, this Data Protection Addendum is a binding part of the Agreement and is effective from the time set forth above.

If the Controller prefers a signed version of this Data Protection Addendum, Controller can email Processor and request a PDF version for signature.

ANNEX 1 TO DATA PROTECTION ADDENDUM: DETAILS OF PROCESSING OF CONTROLLER PERSONAL DATA

This Annex 1 includes certain details of the Processing of Controller Personal Data as required by Article 28(3) GDPR.

Duration of the Processing of Controller Personal Data

Processor will process the Controller Personal Data for as long as it provides services to Controller and/or Controller Affiliates and will hold the Controller Personal Data after that date only as set out in the Agreement and this Addendum, and then only as necessary for its legitimate business purposes.

The subject matter, nature, and purpose of the Processing of Controller Personal Data

All processing activities (including the collection, organization and analysis of Personal Data) as are reasonably required to facilitate or support the provision of the Services described under the Agreement and for the purposes as set out in the Agreement and for no other purposes. 

The types of Controller Personal Data to be Processed

The Services under the Agreement may involve the processing of the following types of personal data:

  1. Name
  2. Mailing Address
  3. Billing Address
  4. Credit Card Number
  5. Credit Card CVV
  6. Credit Card expiry date
  7. Credit card Track Data
  8. Bank Routing, Account, cheque number
  9. Customer Processor identification code as assigned, including Customer number in SAP
  10. Front end username, password
  11. Digital wallet or alternative payment user ID and password
  12. Telephone number
  13. Precise geolocation
  14. Email address
  15. IP Address
  16. MAC Address
  17. Other Device Identification

The categories of Data Subject to whom the Controller Personal Data relates

The data subjects may include individuals named in respect of which Controller or Controller Affiliates has engaged for Processor to provide any services and/or individuals that are beneficiaries of, or have made claims under, or are otherwise involved in the provision of receipt of any such services.  These include:

  1. Controller customers
  2. Controller Affiliate customers

The obligations and rights of Controller and Controller Affiliates

The obligations and rights of Controller and Controller Affiliates are set out in the Agreement and this Addendum.

Types of special category personal data (if applicable)

The Controller and Processor agree that the Processor will not Process any special category of personal data.

ANNEX 2 TO DATA PROTECTION ADDENDUM: DETAILS OF TECHNICAL SECURITY MEASURES

The Processor is certified compliant with all applicable standards for the Services by the Payment Card Industry Data Security Standards (“PCI DSS”).  The Processor’s Attestation of Compliance is upon request. 

By way of summary, as of the Addendum Effective Date, Delego, as Processor processing Personal Data on behalf of the Controller in connection with the Services, has implemented and will maintain the following technical and organizational security measures for processing of such Personal Data (“Security Standards”):

  1. Physical Access Control: The Processor shall take reasonable measures to restrict physical access, such as security personnel and secured buildings and factory premises, to prevent unauthorized persons from gaining access to Personal Data, or ensure third Parties operating data centers on its behalf are adhering to such controls.
  2. System Access Controls: The Processor shall take reasonable measures to prevent Personal Data from being used without authorization. These controls shall vary based on the nature of the Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels.
  3. Data Access Controls: The Processor shall take reasonable measures to provide that Personal Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to use a data processing system only have access to the Personal Data to which they have privilege of access.
  4. Data Backup: Backups of the databases in the Service, as applicable and required, are taken on a regular basis are secured and encrypted to ensure that Personal Data is protected against accidental destruction or loss when hosted by Data Processor.
  5. Logical Separation: Data from different Processor’s subscriber environments is logically segregated on Processor’s systems to ensure that Personal Data that is collected for different purposes may be processed separately.
  6. Transmission Controls: The Processor shall take reasonable measures to ensure that it is possible to check and establish as to which entities the transfer of Personal Data by means of data transmission facilities is envisaged, so that data cannot be read, copied or removed without the authorization during electronic transmission or transport.
  7. Input Controls: Processor shall take reasonable measures to provide that it is possible to check and establish whether and by whom service data has been entered into data processing systems, modified or removed. Processor shall take reasonable measures to ensure that (i) the Personal Data source is under the control of Controller; and (ii) Personal Data integrated into the Services is managed by secured transmission from Controller.
  8. Availability Control: Processor implements suitable measures designed to ensure that Personal Data are protected from accidental destruction or loss, and that Processor can restore the availability and access to Personal Data in a timely manner in the event of a security incident. This is accomplished by (i) Infrastructure redundancy (ii) Scalable architecture design to support large traffic
  9. Deletion & Return: Upon Controller’s request, or upon termination or expiration of the Agreement, Processor shall destroy or return to Controller all Personal Data pursuant to section 10 of the Addendum.
  10. Security Measures: Processor shall ensure that any authorized person is subject to a strict duty of confidentiality (whether a contractual or statutory duty) and that they process the Personal Data only for delivering the Services under the Agreement to Controller. Processor utilizes Third-Party hosting providers that are ISO27001 and SOC2 certified.

ANNEX 3 TO DATA PROTECTION ADDENDUM: STANDARD CONTRACTUAL CLAUSES

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

Name of the data exporting organization: Controller and its Controller Affiliates in the United Kingdom and the European Economic Area            

Address:

Tel.:      ; fax:     ; email:            

Other information needed to identify the organization

……………………………………………………………

(the data exporter)

And

Name of the data importing organization: Delego Software ULC

Address: 305 King Street W, Suite 302, Kitchener, ON, Canada, N2G IB9

Tel.: 401-451-6599; email: donna.williams@evopayments.com              

Other information needed to identify the organization:

…………………………………………………………………

(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;
(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 Subprocessor’ means any Processor engaged by the data importer or by any other Subprocessor of the data importer who agrees to receive from the data importer or from any other Subprocessor 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 Subprocessor 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 Subprocessor 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 Subprocessor 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 subprocessing 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 subprocessing, the processing activity is carried out in accordance with Clause 11 by a Subprocessor 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

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:

  • (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 unauthorized access, and
  • (iii) 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 subprocessing, 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 subprocessing, it has previously informed the data exporter and obtained its prior written consent;

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

(j) to send promptly a copy of any Subprocessor 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 Subprocessor 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 Subprocessor 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 Subprocessor 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 Subprocessor 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 Subprocessor agrees that the data subject may issue a claim against the data Subprocessor 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 Subprocessor 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 Subprocessor, 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 Subprocessor preventing the conduct of an audit of the data importer, or any Subprocessor, 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

Subprocessing

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

  1. The Parties agree that on the termination of the provision of data processing services, the data importer and the Subprocessor 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 Subprocessor 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.

On behalf of the data exporter:

Name (written out in full):

Position:

Address:

Other information necessary in order for the contract to be binding (if any):

Signature……………………………………….

On behalf of the data importer:

Name (written out in full): Position:

Address:

Other information necessary in order for the contract to be binding (if any):

Signature……………………………………….

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 this Appendix

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

Controller and the Controller Affiliates in the United Kingdom and the European Economic Area.

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

Delego Software ULC

Data subjects

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

The data subjects may include individuals named in respect of which Controller or Controller Affiliates has engaged for Processor to provide any services and/or individuals that are beneficiaries of, or have made claims under, or are otherwise involved in the provision of receipt of any such services.  These include:

  1. Controller customers
  2. Controller Affiliate customers

Categories of data

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

 The Services under the Agreement may involve the processing of the following types of personal data:

  1. Name
  2. Mailing Address
  3. Billing Address
  4. Credit Card Number
  5. Credit Card CVV
  6. Credit Card expiry date
  7. Credit Card Track Data  
  8. Bank Routing, Account, cheque number
  9. Customer Processor identification code as assigned, including Customer number in SAP
  10. Front end username, password
  11. Digital wallet or alternative payment user ID and password
  12. Telephone number
  13. Precise geolocation
  14. Email address
  15. IP Address
  16. MAC Address
  17. Other Device Identification

Special categories of data (if appropriate)

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

The Controller and Processor agree that the Processor will not Process any special category of personal data.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

All processing activities (including the collection, organization and analysis of Personal Data) as are reasonably required to facilitate or support the provision of the Services described under the Agreement and for the purposes as set out in the Agreement and for no other purposes. 

DATA EXPORTER: 

Name:………………………………      

Authorized Signature ……………………

DATA IMPORTER:

Name: ………………………………     

Authorized Signature ……………………

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 organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c).

The Processor is certified compliant with all applicable standards for the Services by the Payment Card Industry Data Security Standards (“PCI DSS”).  The Processor’s Attestation of Compliance is upon request. 

By way of summary, as of the Addendum Effective Date, Delego, as Processor processing Personal Data on behalf of the Controller in connection with the Services, has implemented and will maintain the following technical and organizational security measures for processing of such Personal Data (“Security Standards”):

  1. Physical Access Control: The Processor shall take reasonable measures to restrict physical access, such as security personnel and secured buildings and factory premises, to prevent unauthorized persons from gaining access to Personal Data, or ensure third Parties operating data centers on its behalf are adhering to such controls.
  2. System Access Controls: The Processor shall take reasonable measures to prevent Personal Data from being used without authorization. These controls shall vary based on the nature of the Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels.
  3. Data Access Controls: The Processor shall take reasonable measures to provide that Personal Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to use a data processing system only have access to the Personal Data to which they have privilege of access.
  4. Data Backup: Backups of the databases in the Service, as applicable and required, are taken on a regular basis are secured and encrypted to ensure that Personal Data is protected against accidental destruction or loss when hosted by Data Processor.
  5. Logical Separation: Data from different Processor’s subscriber environments is logically segregated on Processor’s systems to ensure that Personal Data that is collected for different purposes may be processed separately.
  6. Transmission Controls: The Processor shall take reasonable measures to ensure that it is possible to check and establish as to which entities the transfer of Personal Data by means of data transmission facilities is envisaged, so that data cannot be read, copied or removed without the authorization during electronic transmission or transport.
  7. Input Controls: Processor shall take reasonable measures to provide that it is possible to check and establish whether and by whom service data has been entered into data processing systems, modified or removed. Processor shall take reasonable measures to ensure that (i) the Personal Data source is under the control of Controller; and (ii) Personal Data integrated into the Services is managed by secured transmission from Controller.
  8. Availability Control: Processor implements suitable measures designed to ensure that Personal Data are protected from accidental destruction or loss, and that Processor can restore the availability and access to Personal Data in a timely manner in the event of a security incident. This is accomplished by (i) Infrastructure redundancy (ii) Scalable architecture design to support large traffic.
  9. Deletion & Return: Upon Controller’s request, or upon termination or expiration of the Agreement, Processor shall destroy or return to Controller all Personal Data pursuant to section 10 of the Addendum.
  10. Security Measures: Processor shall ensure that any authorized person is subject to a strict duty of confidentiality (whether a contractual or statutory duty) and that they process the Personal Data only for delivering the Services under the Agreement to Controller. Processor utilizes Third-Party hosting providers that are ISO27001 and SOC2 certified.