This Data Protection Addendum (“Addendum”) is entered into between Merchant and Hyperwallet (collectively the “Parties”). This Addendum shall form part of the Services Agreement between Merchant and Hyperwallet (the “Agreement”) in accordance with the “Effect of this Addendum” section below.
Capitalized terms used but not defined in this Addendum shall have the meaning set out in the Agreement.
EFFECT OF THIS ADDENDUM
This Addendum amends and forms part of the Agreement, and is effective as of the Effective Date of the Agreement.
1 DEFINITIONS AND INTERPRETATION
1.1 The following terms have the following meanings when used in this Addendum
“data controller” (or simply “controller”) and “data processor” (or simply “processor”) and “data subject” have the meanings given to those terms under the Data Protection Laws.
“Data Protection Laws” means EU Directive 95/46/EC or Regulation (EU) 2016/679 (GDPR) and any associated regulations or instruments and any other data protection laws, regulations, regulatory requirements and codes of conduct of EU Member States applicable to Hyperwallet’s provision of the Services.
“Hyperwallet” means the entity that is a party to the Agreement, being HSI USA, a Utah corporation; Hyperwallet Systems Inc., a corporation incorporated in British Columbia; Hyperwallet Systems Europe Limited, a company incorporated in England and Wales; or Hyperwallet Systems Australia Pty. Ltd., an Australian proprietary limited company, and any of their respective successors and assignees, including but not limited to PayPal (Europe) S.à r.l. et Cie, S.C.A., established under the laws of Luxembourg.
“Merchant Data” means any personal data relating to business contact details of Merchant or its employees, officers or contractors provided to or obtained by Hyperwallet in the provision of the Services.
“PayPal Group” means PayPal and all companies in which PayPal, its parent, or their successors directly or indirectly from time to time own or control.
“Payee” means a European Union Payee of Merchant who uses the Services and for the purposes of this Addendum, is a data subject.
“Payee Data” means the personal data that the Payee provides directly or indirectly to Merchant and Merchant passes on to Hyperwallet through the use of the Hyperwallet Services.
“personal data” has the meaning given to it in the Data Protection Laws.
“processing” has the meaning given to it in the Data Protection Laws and “process”, “processes” and “processed” will be interpreted accordingly.
“Security Incident” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Payee Data on systems managed by or otherwise controlled by Hyperwallet.
“Services” means the “Hyperwallet Services” as defined in the Agreement.
“Sub-processor” means any processor engaged by PayPal and/or its affiliates in the processing of personal data.
“Standard Contractual Clauses” means unmodified standard contractual clauses approved and recognized by all relevant legal authorities of the European Union.
1.2 This Addendum comprises (i) sections 1 to 4, being the main body of the Addendum; (ii) Attachment 1; and (iii) Attachment 2.
2 PROCESSING OF PERSONAL DATA IN CONNECTION WITH THE SERVICES
2.1 Hyperwallet is the controller in respect of Merchant Data and may use it for the following purposes:
2.1.1 as reasonably necessary to provide the Services to Merchant and its Payee;
2.1.2 to conduct anti-money laundering, know your customer and fraud checks on the Merchant
2.1.3 to market to the employees of Merchant; and
2.1.4 any other purpose that it notifies (or Merchant agrees to notify on its behalf) to the employees of Merchant in accordance with Data Protection Laws.
2.2 Hyperwallet shall comply with the requirements of the Data Protection Laws applicable to controllers in respect of the use of Merchant Data under this Agreement (including without limitation, by implementing and maintaining at all times all appropriate security measures in relation to the processing of Merchant Data and by maintaining a record of all processing activities carried out in respect of Merchant Data) and shall not knowingly do anything or permit anything to be done with respect to the Merchant Data which might lead to a breach by the Merchant of the Data Protection Laws.
2.3 With regard to any Payee Data to be processed by Hyperwallet in connection with this Agreement, Merchant will be a controller and Hyperwallet will be a processor in respect of such processing. Merchant will be solely responsible for determining the purposes for which and the manner in which Payee Data are, or are to be, processed. Merchant acknowledges that due to Hyperwallet’s independent obligations and responsibilities to or in respect of Data Subjects as may arise in connection with Hyperwallet’s compliance with applicable laws, including but not limited to those arising under any payment services regulation (e.g. Bank Secrecy Act, Proceeds of Crime (Money Laundering) and Terrorist Financing Act, The Payment Regulations Services 2017, Electronic Money Regulations 2011; Money Laundering, Terrorist Financing and Transfer of Funds Regulations 2017) and in order to provide, offer, and enhance the services to Merchants and their payees, etc. (together the “Hyperwallet Purposes”), Hyperwallet is the Data Controller of any Personal Data for such Data Subjects for the Hyperwallet Purposes, whether such Personal Data is received from Merchant or directly from the Data Subjects in question (“Hyperwallet Personal Data”). Accordingly, Hyperwallet will comply with the GDPR for Hyperwallet Personal Data in its capacity as a Data Controller for the Hyperwallet Purposes and shall act as a data Processor in respect of any other purposes. Merchant and Hyperwallet do not intend to jointly determine the purposes and means of Processing and shall each act independently as Data Controllers and not as joint controllers (as defined under Data Protection Laws).
2.4 Hyperwallet shall only process Payee Data on behalf of and in accordance with Merchant’s written instructions. The Parties agree that this Addendum is Merchant’s complete and final written instruction to Hyperwallet in relation to Payee Data. Additional instructions outside the scope of this Addendum (if any) require prior written agreement between Hyperwallet and Merchant, including agreement of any additional fees payable by Merchant to Hyperwallet for carrying out such additional instructions. Merchant shall ensure that its instructions comply with all applicable laws, including Data Protection Laws, and that the processing of Payee Data in accordance with Merchant’s instructions will not cause Hyperwallet to be in breach of Data Protection Laws. Merchant hereby instructs Hyperwallet to process Payee Data for the following purposes:
2.4.1 as reasonably necessary to provide the Services to Merchant and its Payee;
2.4.2 after anonymizing the Payee Data, to use that anonymized Payee Data, directly or indirectly, which is no longer identifiable personal data, for any purpose whatsoever.
2.5 In relation to Payee Data processed by Hyperwallet under this Agreement, Hyperwallet shall co-operate with Merchant to the extent reasonably necessary to enable Merchant to adequately discharge its responsibility as a controller under Data Protection Laws, including without limitation that Hyperwallet shall cooperate and provide Merchant with such reasonable assistance as Merchant requires in relation to:
2.5.1 assisting Merchant in the preparation of data protection impact assessments to the extent required of Merchant under Data Protection Laws; and
2.5.2 responding to binding requests for the disclosure of information as required by local laws, provided always that where the request is from a non-EEA law enforcement agency Hyperwallet will (a) inform Merchant of the request, the data concerned, response time, the identity of the requesting body and the legal basis for the request; (b) wait for Merchant’s instructions provided the instruction and the opinion are received within a reasonable period of time, which shall be assessed in light of the time period afforded by the law enforcement agency to Hyperwallet; (c) where Hyperwallet is prohibited from informing Merchant about the law enforcement agency’s request, take reasonable steps to have this prohibition waived and to make available relevant information about the request as soon as possible to Merchant (these efforts will be documented); and (d) where the prohibition cannot be waived, compile a list, in compliance with its national law and on an annual basis, of the number of such requests received, the type of Payee Data requested and the identity of the law enforcement agency concerned and make it available to the Payee’s data protection authority annually on request (in which circumstances Hyperwallet will be acting as a controller).
2.6 Scope and Details of Payee Data processed by Hyperwallet. The objective of processing Payee Data by Hyperwallet is the performance of the Services pursuant to the Agreement. Hyperwallet shall process the Payee Data in accordance with the specified duration, purpose, type and categories of data subjects as set out in Attachment 3 (Data Processing of Payee Data).
2.7 The Parties will at all times comply with Data Protection Laws.
3 DATA PROCESSOR TERMS
This section 3 applies only to the extent that Hyperwallet acts as a processor or Sub-processor to Merchant. It does not apply where Hyperwallet acts as a controller.
3.1 Correction, Blocking and Deletion. To the extent Merchant, in its use of the Services, does not have the ability to correct, amend, block or delete Payee Data, as required by Data Protection Laws, Hyperwallet shall comply with any commercially reasonable request by Merchant to facilitate such actions to the extent Hyperwallet is legally permitted to do so. To the extent legally permitted, Merchant shall be responsible for any costs arising from Hyperwallet’s provision of such assistance.
3.2 Data Subject Requests. Hyperwallet shall, to the extent legally permitted, promptly notify Merchant if it receives a request from a Payee for access to, correction, amendment or deletion of that Payee’s personal data. Hyperwallet shall not respond to any such Payee request without Merchant’s prior written consent except to confirm that the request relates to Merchant to which Merchant hereby agrees. Hyperwallet shall provide Merchant with commercially reasonable cooperation and assistance in relation to handling of a Payee’s request for access to that person’s personal data, to the extent legally permitted and to the extent Merchant does not have access to such Payee Data through its use of the Services. If legally permitted, Merchant shall be responsible for any costs arising from Hyperwallet’s provision of such assistance.
3.3 Confidentiality. Hyperwallet shall ensure that its personnel engaged in the processing of Payee Data are informed of the confidential nature of the Payee Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Hyperwallet shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
3.4 Training. Hyperwallet undertakes to provide training as necessary from time to time to the Hyperwallet personnel with respect to Hyperwallet’s obligations in this Addendum to ensure that the Hyperwallet personnel are aware of and comply with such obligations.
3.5 Limitation of Access. Hyperwallet shall ensure that access by Hyperwallet’s personnel to Payee Data is limited to those personnel performing Services in accordance with the Agreement.
3.6 Data Protection Officer. Members of the PayPal Group have appointed a data protection officer where such appointment is required by Data Protection Laws. The appointed person may be reached at PayPal (Europe) S.à.r.l. et Cie, S.C.A., 22-24 Boulevard Royal L-2449, Luxembourg.
3.7 Sub-processors. Merchant specifically authorizes the engagement of members of the PayPal Group as Sub-processors in connection with the provision of the Services. In addition, Merchant generally authorizes the engagement of any other third parties as Sub-processors in connection with the provision of the Services. When engaging any Sub-processor, Hyperwallet will execute a written contract with the Sub-processor which contains terms for the protection of Payee Data which are no less protective than the terms set out in this Addendum.
3.7.1 List of Current Sub-processors and Notification of New Sub-processors. Hyperwallet shall make available to Merchant a current list of Sub-processors for the respective Services with the identities of those Sub-processors at the following link https://www.hyperwallet.com/subprocessors/ (“Sub-processor List”). The Sub-processor List is available via a URL provided by Hyperwallet (“Sub-Processor Site”) or otherwise provided from time to time. Where a Sub-processor is proposed to be changed Hyperwallet shall provide prior notice by email to Merchant before implementing such change.
3.7.2 Objection Right for new Sub-processors. If Merchant has a reasonable basis to object to Hyperwallet’s use of a new Sub-processor, Merchant shall notify Hyperwallet promptly in writing within two (2) months after receipt of Hyperwallet’s notice. In the event Merchant objects to a new Sub-processor(s) and that objection is not unreasonable Hyperwallet will use reasonable efforts to make available to Merchant a change in the affected Services or recommend a commercially reasonable change to Merchant’s configuration or use of the affected Services to avoid processing of personal data by the objected-to new Sub-processor without unreasonably burdening Merchant. If Hyperwallet is unable to make available such change within a reasonable period of time, which shall not exceed sixty (60) days, Merchant may terminate the Agreement in respect only of those Services which cannot be provided by Hyperwallet without the use of the objected-to new Sub-processor, by providing no less than sixty (60) days’ written notice to Hyperwallet. Merchant shall receive a refund of any prepaid fees for the period following the effective date of termination in respect of such terminated Services.
3.9 Security. Taking into account the state of the art and the costs of the 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, Hyperwallet shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Merchant Data.
3.10 Security Incident Notification. If Hyperwallet becomes aware of a Security Incident in connection with the processing of Payee Data, Hyperwallet will: (a) notify Merchant of the Security Incident promptly and without undue delay; and (b) promptly take reasonable steps to minimize harm and secure Payee Data.
3.11 Details of Security Incident. Notifications made under section 3.10 (Security Incident Notification) will describe, to the extent possible, reasonable details of the Security Incident, including steps taken to mitigate the potential risks.
3.12 Communication. Hyperwallet will deliver its notification of any Security Incident to one or more of Merchant’s administrators by any means Hyperwallet selects, including via email. Merchant is solely responsible for maintaining accurate contact information and ensuring that any contact information is current and valid.
3.13 Deletion. Upon termination or expiry of the Agreement, Hyperwallet will delete or return to Merchant all Payee Data processed on behalf of the Merchant, and Hyperwallet shall delete existing copies of such Payee Data except where necessary to retain such Payee Data strictly for the purposes of compliance with applicable law.
3.14 Standard Contractual Clauses. The Standard Contractual Clauses are incorporated herein in the event Merchant transfers Personal Data from a country outside the Europe Union that is not recognised by the European Commission as having adequate protection of Personal Data.
3.14.1 Clause 1 of the Standard Contractual Clauses (“data importer”). The term “data importer means Hyperwallet.
3.14.2 Clause 1 of the Standard Contractual Clauses (“data exporter”). The term “data exporter means Merchant.
3.14.3 Appendix 2. Attachment 2 shall form Appendix 2 of the Standard Contractual Clauses.
4 LEGAL EFFECT
This Addendum shall take effect between, and become legally binding on the Parties on the date determined by “Effect of this Addendum” section above.
Data Processing of Payee Data
Categories of data subjects
Payee Data – The personal data that the Payee provides to Merchant and Merchant passes on to Hyperwallet through the use by the Payee of the Hyperwallet Services.
Subject-matter of the processing
The payment processing services offered by Hyperwallet allow a Payee to receive payments from and as directed by the Merchant through one of several methods, each as determined by the Merchant, such as a transfer to the Payee bank account, load to a prepaid card issued to Payee by a third-party issuer, load to a Payee existing debit card, issuance of e-money account (where available), check, cash pickup at collection locations provided by third-party money transfer providers (e.g. Western Union), and other payment methods.
Nature and purpose of the processing
Hyperwallet processes payment transactions on a Merchant’s behalf. Hyperwallet processes Payee information for the following reasons:
- To operate the Sites and provide the Services, such as to evaluate a Payor’s application to use our Services or to establish a user’s identity for compliance purposes, authenticate user’s access to Payee’s Account; and to process payment transactions on a Payor’s behalf;
- To manage Hyperwallet’s business needs, such as monitoring, analyzing, and improving the Services and the Sites’ performance and functionality.
- To manage risk and protect the Sites, the Services and You from fraud by verifying Your identity and helping to detect and prevent fraud and abuse of the Sites or Services.
- To market to Payors by delivering marketing materials about Services.
- To provide You with location-specific options, functionality or offers if You elect to share Your Geolocation Information through the Services. We will use this information to enhance the security of the Sites and Services and provide You with location-based Services, such as advertising, search results, and other personalized content.
- To comply with our obligations and to enforce the terms of our Sites and Services, including to comply with all applicable laws and regulations.
- For the performance of a contract, such as where necessary to carry out payment services.
- For our legitimate interests:
- to enforce the terms of our Sites and Services;
- manage our everyday business needs; and
- provide aggregated and anonymized statistical data to third parties, including other businesses and members of the public, about how, when, and why Users visit our Sites and use our Services;
- With Your consent: to: respond to Your requests, for example to contact You about a question You submitted to our customer service team. You can withdraw Your consent at any time and free of charge.
We may also use information that we collect in aggregate form to further develop and improve the Sites and Services, and for our own business analyses that will allow us to make informed decisions.
Type of personal data
This information may be obtained from the Merchant and/or Payee and include Payee’s name, nationality, home address, telephone number, personal e-mail address, Payee forwarding address (e.g. during a vacation), previous address(es), billing and account information (such as credit or debit card number, or bank account number), Payee mailing preferences, delivery instructions, transaction history, IP address, and service preferences, as well as other information defined as non-public or private information about Payee pursuant to applicable law.
Special categories of data (if relevant)
The transfer of special categories of data is not applicable to the services Hyperwallet provides.
Duration of Processing
The term of the Agreement.
Technical and Organisational Measures of The Processor
The following technical and organizational measures will be implemented:
- Commercially reasonable measures taken to prevent any unauthorized person from accessing the facilities used for data processing;
- Commercially reasonable measures taken to prevent data media from being read, copied, amended or moved by any unauthorized persons;
- Commercially reasonable measures taken to prevent the unauthorized introduction of any data into the information system, as well as any unauthorized knowledge, amendment or deletion of the recorded data;
- Commercially reasonable measures taken to prevent data processing systems from being used by unauthorized person using data transmission facilities;
- Commercially reasonable measures taken to ensure that authorized persons when using an automated data processing system may access only data that are within their competence;
- Commercially reasonable measures taken to ensure the checking and recording of the identity of third parties to whom the data can be transmitted by transmission facilities;
- Commercially reasonable measures taken to ensure that the identity of the persons having had access to the information system and the data introduced into the system can be checked and recorded ex post facto at any time and by any authorized person;
- Commercially reasonable measures taken to prevent data from being read, copied, amended or deleted in an unauthorized manner when data are disclosed and data media transported;
- Commercially reasonable measures taken to safeguard data by creating backup copies.