This Data Processing Agreement (“DPA”/“Agreement”) is subject to and forms part of your pawaPay Merchant Services Agreement (the “Master Agreement”), where applicable, and governs pawaPay’s (herein defined as the “Processor”) and its Affiliates’ Processing of Personal Data.
AGREED TERMS
1. Definitions and Interpretation
The following definitions and rules of interpretation apply in this Agreement.
1.1 Definitions:
Authorised Persons: the persons or categories of persons that the Merchant authorises to give the Processor written personal data processing instructions and from whom the Processor agrees solely to accept such instructions.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach and Processing: have the meanings given to them in the Data Protection Legislation.
Data Processing Purposes: are as stated in clause 2.2.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the Processor or Merchant’s jurisdictions including without limitation the Estonian Personal Data Protection Act 2018 (and guidelines made thereunder) (PDPA 2018), the GDPR and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
EEA: the European Economic Area.
GDPR: the General Data Protection Regulation ((EU) 2016/679).
Records: has the meaning given to it in Clause 12.
Standard Contractual Clauses (SCCs): the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU, or such alternative clauses as may be approved by the European Commission from time to time.
Regulatory Authority: means the applicable data privacy regulator in the Processor and Merchant’s jurisdictions.
Term: this Agreement's term as defined in Clause 10.
1.2. This Agreement is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this Agreement.
1.3. A reference to writing or written includes faxes and email.
1.4. In the case of conflict or ambiguity between:
(a) any of the provisions of this Agreement and the provisions of the Master Agreement, the provisions of this Agreement will prevail; and
(b) any of the provisions of this Agreement and any executed SCC, the provisions of the executed SCC will prevail.
2. Personal Data Types and Processing Purposes
2.1. The Merchant and the Processor agree and acknowledge that for the purpose of the Data Protection Legislation:
(a) the Merchant is the Controller, and pawaPay is the Processor.
(b) the Merchant retains control of the Personal Data and remains responsible for its compliance obligations under the Data Protection Legislation, including but not limited to, providing any required notices and obtaining any required consents from its End Users, and for the written processing instructions it gives to the Processor.
2.2. Data Processing Purposes: The purpose of pawaPay processing the Personal Data is to:
(a) service the pawaPay platform; and
(b) provide and provide access to the Services.
2.3. Data Subject: pawaPay may process the Personal Data of End Users, Merchant, representatives and anyone who accesses or uses the pawaPay platform.
2.4. Duration of Processing: for the Term and any period required to perform a party’s post-termination obligations.
3. Processor's Obligations
3.1. The Processor will only process the Personal Data to the extent, and in such a manner, as is necessary for the Data Processing Purposes in accordance with the Merchant's written instructions from Authorised Persons. The Processor will not process the Personal Data for any other purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. The Processor must promptly notify the Merchant if, in its opinion, the Merchant's instructions do not comply with the Data Protection Legislation.
3.2. The Processor must comply with any Merchant written instructions requiring the Processor to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.
3.3. The Processor will maintain the confidentiality of the Personal Data and will not disclose the Personal Data to third-parties unless the Merchant or this Agreement specifically authorises the disclosure, or as required by domestic or EU law, court or the Regulatory Authority. If a domestic or EU law, court or the Regulatory Authority requires the Processor to process or disclose the Personal Data to a third-party, the Processor must first inform the Merchant of such legal or regulatory requirement, unless the domestic or EU law prohibits the giving of such notice.
3.4. The Processor will reasonably assist the Merchant, with meeting the Merchant's compliance obligations under the Data Protection Legislation, taking into account the nature of the Processor's processing and the information available to the Processor, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with the Regulatory Authority.
3.5. The Processor must notify the Merchant promptly of any changes to the Data Protection Legislation that may reasonably be interpreted as adversely affecting the Processor's performance of the Master Agreement or this Agreement.
4. Processor's Employees
4.1. The Processor will ensure that all of its employees:
(a) are informed of the confidential nature of the Personal Data and are bound by written confidentiality obligations and use restrictions in respect of the Personal Data; and
(b) are aware both of the Processor's duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
5. Security
5.1. The Processor must at all times implement appropriate technical and organisational measures against accidental, unauthorised or unlawful processing, access, copying, modification, reproduction, display or distribution of the Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data.
5.2. The Processor must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:
(a) the pseudonymisation and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
(d) a process for regularly testing, assessing and evaluating the effectiveness of the security measures.
6. Personal Data Breach
6.1. The Processor will without undue delay notify the Merchant in writing if it becomes aware of:
(a) the loss, unintended destruction or damage, corruption, or unusability of part or all of the Personal Data. The Processor will restore such Personal Data at its own expense as soon as possible.
(b) any accidental, unauthorised or unlawful processing of the Personal Data; or
(c) any Personal Data Breach.
6.2 Where the Processor becomes aware of (a), (b) and/or (c) above, it will, without undue delay, also provide the Merchant with the following written information:
(a) description of the nature of (a), (b) and/or (c), including the categories of in-scope Personal Data and approximate number of both Data Subjects and the Personal Data records concerned;
(b) the likely consequences; and
(c) a description of the measures taken or proposed to be taken to address (a), (b) and/or (c), including measures to mitigate its possible adverse effects.
6.3. Immediately following any accidental, unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will coordinate with each other to investigate the matter. Further, the Processor will reasonably cooperate with the Merchant at no additional cost to the Merchant, in the Merchant's handling of the matter, including but not limited to:
(a) assisting with any investigation;
(b) providing the Merchant with physical access to any facilities and operations affected;
(c) facilitating interviews with the Processor's employees, former employees and others involved in the matter including, but not limited to, its officers and directors;
(d) making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Merchant; and
(e) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or accidental, unauthorised or unlawful Personal Data processing.
6.4. The Processor will not inform any third-party of any accidental, unauthorised or unlawful processing of all or part of the Personal Data and/or a Personal Data Breach without first obtaining the Merchant's written consent, except when required to do so by domestic or EU law.
6.5. The Processor agrees that the Merchant has the sole right to determine:
(a) whether to provide notice of the accidental, unauthorised or unlawful processing and/or the Personal Data Breach to any Data Subjects, the Regulatory Authority, other in-scope regulators, law enforcement agencies or others, as required by law or regulation or in the Merchant's discretion, including the contents and delivery method of the notice; and
(b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
6.6. The Processor will cover all reasonable expenses associated with the performance of the obligations under clause 6.1 to clause 6.3 unless the matter arose from the Merchant's specific written instructions, negligence, wilful default or breach of this Agreement, in which case the Merchant will cover all reasonable expenses.
6.7. The Processor will also reimburse the Merchant for actual reasonable expenses that the Merchant incurs when responding to an incident of accidental, unauthorised or unlawful processing and/or a Personal Data Breach to the extent that the Processor caused such, including all costs of notice and any remedy as set out in Clause 6.5.
7. Cross-Border Transfers of Personal Data
7.1. The Processor may transfer Personal Data outside the EEA as necessary to provide the Services. In particular, Personal Data may be transferred to the Processors Affiliates, subprocessors and MNOs in other jurisdictions.
7.2. The Controller hereby authorises and agrees to the transfers described in Clause 7.1.
7.3. Other than as stated in Clause 7.1 the Processor (and any subprocessor) must not transfer or otherwise process the Personal Data outside the EEA without obtaining the Merchant's prior written consent.
7.4. Where such consent is granted, the Processor may only process, or permit the processing, of the Personal Data outside the EEA under the following conditions:
(a) the Processor is processing the Personal Data in a territory which is subject to adequacy regulations under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. The Processor must identify the territory that is subject to such adequacy regulations; or
(b) the Processor participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Processor (and, where appropriate, the Merchant) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the GDPR. The Processor must identify the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and the Processor must immediately inform the Merchant of any change to that status; or
(c) the transfer otherwise complies with the Data Protection Legislation.
7.5. If any Personal Data transfer between the Merchant and the Processor requires execution of SCCs in order to comply with the Data Protection Legislation (where the Merchant is the entity exporting Personal Data to the Processor outside the EEA), the parties will complete all relevant details in, and execute, the SCCs and take all other actions required to legitimise the transfer.
7.6. If the Merchant consents to appointment by the Processor of a subprocessor located outside the EEA in compliance with the provisions of clause 8, then the Merchant authorises the Processor to enter into SCCs with the subprocessor in the Merchant’s name and on its behalf. The Processor will make the executed SCCs available to the Merchant on request.
8. Subprocessors
8.1. pawaPay engages subprocessors to provide the Services. pawaPay’s list of subprocessors which may include Payment Providers and other Affiliates is provided here.
8.2. Other than as stated in Clause 8.1, the Processor may only authorise a third-party (subprocessor) to process the Personal Data if:
(a) the Merchant provides written consent prior to the appointment of each subprocessor;
(b) the Processor enters into a written contract with the subprocessor that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon the Merchant's written request, provides the Merchant with copies of the relevant excerpts from such contracts;
(c) the Processor maintains control over all of the Personal Data it entrusts to the subprocessor; and
(d) the subprocessor's contract terminates automatically on termination of this Agreement for any reason.
8.3. The subprocessors referred to in clause 8.1, are hereby approved as at the commencement of this Agreement.
8.4. Where the subprocessor fails to fulfil its obligations under the written agreement with the Processor which contains terms substantially the same as those set out in this Agreement, the Processor remains fully liable to the Merchant for the subprocessor's performance of its agreement obligations.
8.5. The Parties agree that the Processor will be deemed by them to legally control any Personal Data controlled practically by or in the possession of its subprocessors.
9. Complaints, Data Subject Requests and Third-Party Rights
9.1. The Processor must take such technical and organisational measures as may be appropriate, and promptly provide such information to the Merchant as the Merchant may reasonably require, to enable the Merchant to comply with:
(a) the rights of Data Subjects under the Data Protection Legislation, including, but not limited to, subject access rights, the rights to rectify, port and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and
(b) information or assessment notices served on the Merchant by the Regulatory Authority under the Data Protection Legislation.
9.2. The Processor must notify the Merchant immediately in writing if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Legislation.
9.3. The Processor must notify the Merchant within three (3) days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their other rights under the Data Protection Legislation.
9.4. The Processor will give the Merchant its full cooperation and assistance in responding to any complaint, notice, communication or Data Subject request.
9.5. The Processor must not disclose the Personal Data to any Data Subject or to a third-party other than in accordance with the Merchant's written instructions, or as required by domestic or EU law.
10. Term and termination
10.1. This Agreement will remain in full force and effect so long as:
(a) the Master Agreement remains in effect; or
(b) the Processor retains any of the Personal Data related to the Master Agreement in its possession or control (Term); or
(c) it is terminated by either Party by the giving of not less than thirty (30) days’ notice in writing to the other Party..
10.2. Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect the Personal Data will remain in full force and effect.
10.3. If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its Master Agreement obligations, the parties may agree to suspend the processing of the Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within thirty (30) days either party may terminate the Master Agreement on written notice to the other party.
11. Data storage, data return and destruction
11.1. Unless otherwise required by law, the Processor shall retain and securely store Personal Data for six (6) years from the date it was first Processed.
11.2. Upon the expiration of such period as specified in clause 11.1 above, the Processor shall not be under any further obligation to retain or store such Personal Data and shall immediately delete and destroy all such Personal Data and shall provide the necessary certification to the Company where required 11.6 below.
11.3. At the Merchant's request, the Processor will give the Merchant, or a third-party nominated in writing by the Merchant or the Merchants Representative (as defined in the Master Agreement), a copy of or access to all or part of the Personal Data in its possession or control in the format and on the media reasonably specified by the Merchant.
11.4. Subject to 11.1 above and 11.5 below, on termination of the Master Agreement for any reason or expiry of its term, the Processor will securely delete or destroy or, if directed in writing by the Merchant, return and not retain, all or any of the Personal Data related to this Agreement in its possession or control, except for one copy that it may retain and use for 6 years for legitimate interest only.
11.5. If any law, regulation, or government or regulatory body requires the Processor to retain any documents, materials or Personal Data that the Processor would otherwise be required to return or destroy, it will notify the Merchant in writing of that retention requirement, giving details of the documents, materials or Personal Data that it must retain, the legal basis for such retention, and establishing a specific timeline for deletion or destruction once the retention requirement ends.
11.6. The Processor will certify in writing to the Merchant that it has deleted or destroyed the Personal Data within seven (7) days after it completes the deletion or destruction.
12. Records
12.1. The Processor will keep detailed, accurate and up-to-date written records regarding any processing of the Personal Data, including but not limited to, the access, control and security of the Personal Data, approved subprocessors, the processing purposes, categories of processing, and a general description of the technical and organisational security measures referred to in Clause 5.1 (Records).
12.2. The Processor will ensure that the Records are sufficient to enable the Merchant to verify the Processor's compliance with its obligations under this Agreement and the Data Protection Legislation and the Processor will provide the Merchant with copies of the Records upon request.
13. Audit
13.1. The Processor will permit the Merchant and its third-party representatives to audit the Processor's compliance with its Agreement obligations, on at least thirty (30) days' notice, during the Term. The Processor will give the Merchant and its third-party representatives all necessary assistance to conduct such audits at no additional cost to the Merchant. The assistance may include, but is not limited to:
(a) physical access to, remote electronic access to, and copies of the Records and any other information held at the Processor's premises or on systems storing the Personal Data;
(b) access to and meetings with any of the Processor's personnel reasonably necessary to provide all explanations and perform the audit effectively; and
(c) inspection of all Records and the infrastructure, electronic data or systems, facilities, equipment or application software used to process the Personal Data.
13.2. The notice requirements in Clause 13.1 will not apply if the Merchant reasonably believes that a Personal Data Breach has occurred or is occurring, or the Processor is in material breach of any of its obligations under this Agreement or any of the Data Protection Legislation.
13.3. If a Personal Data Breach occurs or is occurring, or the Processor becomes aware of a breach of any of its obligations under this Agreement or any of the Data Protection Legislation, the Processor will:
(a) promptly conduct its own audit to determine the cause;
(b) produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;
(c) provide the Merchant with a copy of the written audit report; and
(d) remedy any deficiencies identified by the audit within thirty (30) days.
13.4. At least once a year, the Processor will conduct site audits of its Personal Data processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this Agreement, including, but not limited to, obtaining a network-level vulnerability assessment performed by a recognised third-party audit firm based on recognised industry best practices.
13.5. On the Merchant's written request, the Processor will make all of the relevant audit reports available to the Merchant for review, including as applicable reports relating to its ISO/IEC 27001 certification. The Merchant will treat such audit reports as the Processor's confidential information under the Master Agreement.
14. Warranties
14.1. The Processor warrants and represents that:
(a) its employees, subprocessors, agents and any other person or persons accessing the Personal Data on its behalf are reliable and trustworthy and have received the required training on the Data Protection Legislation;
(b)it and anyone operating on its behalf will process the Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;
(c) it has no reason to believe that the Data Protection Legislation prevents it from providing any of the Master Agreement's contracted services; and
14.2. considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the accidental, unauthorised or unlawful processing of Personal Data and the loss or damage to, the Personal Data, and ensure a level of security appropriate to:
(a) the harm that might result from such accidental, unauthorised or unlawful processing and loss or damage;
(b) the nature of the Personal Data protected; and
(c) comply with all applicable Data Protection Legislation and its information and security policies, including the security measures required in Clause 5.1.
14.3. The Merchant warrants and represents that the Processor's expected use of the Personal Data for the Data Processing Purposes and as specifically instructed by the Merchant will comply with the Data Protection Legislation.
15. Indemnification
15.1. The Processor agrees to indemnify, keep indemnified and defend at its own expense the Merchant against all reasonable and foreseeable costs, claims, damages or expenses incurred by the Merchant or for which the Merchant may become liable due to any failure by the Processor or its employees, subprocessors or agents to comply with any of its obligations under this Agreement and/or the Data Protection Legislation.
15.2. For the avoidance of doubt, clause 15.1 does not apply to any costs, claims damages or expenses incurred by the Merchant arising from the negligence, wilful default or breach of this Agreement and Applicable Law on the part of the Merchant or from the Processor complying with the Merchant's specific written instructions.
15.3. Any limitation of liability set forth in the Master Agreement will not apply to this Agreement's indemnity or reimbursement obligations.
