DATA PROCESSING AGREEMENT

This Data Processing Agreement (“DPA”) is an agreement between you and the entity you represent (“Reseller” or “you”), on the one hand, and Visa and/or any other applicable affiliated Visa contracting entity(ies) ("Visa”), on the other hand.  It forms part of any written or electronic agreement between you and Visa (each, an “Agreement”) under which Visa Processes Personal Information on behalf of Reseller’s customers (“Customer Personal Information”), except with respect to any Agreement under which you and Visa have entered data processing terms that address the subject matter hereof.

1  Responsibility of Reseller’s customers.  For the avoidance of doubt, Reseller shall ensure that its customers comply with any and all obligations, responsibilities and requirements in this DPA specified as belonging to Reseller’s customers.

2  Processing of Customer Personal Information.  The parties acknowledge and agree that under Applicable Data Protection Law, that Visa may act in various data processing roles. To enable each party to comply with its obligations under Applicable Data Protection Law, each party further agrees to comply with any required provisions of Schedule A: California Consumer Privacy Act and/or Schedule B: General Data Protection Regulation, each, to the extent applicable.

2.1  GDPR.  Where the General Data Protection Regulation (Regulation (EU) 2016/679 (the “GDPR”) applies to Reseller’s customers use of Visa Services or if Applicable Data Protection Law imposes a comparable requirement, the parties acknowledge and agree that with respect to the Customer Personal Information that Visa Processes, that:

2.1.1  Reseller’s customers are controllers (or equivalent term pursuant to Applicable Data Protection Laws), Reseller is a data processor, and Visa is a “sub-processor” engaged by Reseller to carry out specific processing activities for Reseller’s customers or such equivalent term under Applicable Data Protection Law, if any (referred to as “Sub-Processor” for purposes of this DPA) for the “Sub-Processor Services”. Such Sub-Processor Services include, by way of example and for illustrative purposes the Processing detailed on Details of Processing (Exhibit 2, section 1); and

2.1.2  both Reseller’s customers and Visa are “joint controllers”, or such equivalent term under Applicable Data Protection Law, if any, for the “Controller Services”.  Such Controller Services include the Processing detailed on Details of Processing (Exhibit 2, section 2).

2.2  Other Applicable Data Protection Law.  Where section 1.1 does not apply, the parties acknowledge and agree that Visa is a Sub-Processor for all Visa Services engaged by Reseller to carry out specific processing activities for Reseller’s customers.

3  Compliance with law.  Visa, in its provision of Visa Services to Reseller, and Reseller and its customers in their use of the Visa Services, shall Process Customer Personal Information in accordance with Applicable Data Protection Law. 

4  Privacy Notice.  With respect to the Visa Services, Reseller shall ensure that its customer shall provide their End-User(s) with all privacy notices, information and any necessary choices and shall obtain any necessary consents to enable the parties to comply with Applicable Data Protection Law with respect to the Visa Services.

5  Sub-Processor obligations

5.1  Authorization to Process. Where Visa is acting as a Sub-Processor, it will Process Personal Information on behalf of Reseller’s customers to provide such Visa Services, and Reseller, on behalf of its customers, authorizes Sub-Processor to Process Customer Personal Information solely in connection with the following activities:

5.1.1  In accordance with the applicable Agreement(s), including, without limitation, any exhibits, schedules, and applicable price schedule(s), to provide the Visa Services, and any Processing required under applicable law or regulations;  

5.1.2  Based on the instructions of Reseller and in its use of the Visa Services, Sub-Processor transfers Personal Information to acquiring banks, issuing banks, payment processors providing services on behalf of acquiring banks, credit/debit card companies, or service providers performing payer authentication services used by Customer, such as Verified by Visa and MasterCard Identity Check (ID Check); and

5.1.3  As reasonably necessary to enable Sub-Processor to comply with any other directions or instructions provided by Reseller.

5.2  Data Subject Rights.  Sub-Processor will, to the extent legally permitted, provide reasonable assistance to Reseller to respond to requests from its customers’ End-Users to exercise their rights under Applicable Data Protection Law (e.g., rights to access or delete Personal Information) in a manner that is consistent with the nature and functionality of the Visa Services.  Reseller shall submit such requests for assistance to the Business Center.  Where Sub-Processor receives any such request, it shall advise the End-User that the applicable Reseller’s customer is responsible for handling such requests by an End-User in accordance with Applicable Data Protection Law.

5.3  Engaging with Sub-Sub-Processors.  Sub-Processor shall ensure that when engaging with another data processor including any Affiliates (a “Sub-Sub-Processor”) for the purposes of carrying out specific Processing activities on behalf of Reseller’s customers, there is a written contract in place between Sub-Processor and the relevant Sub-Sub-Processor.  Such written contracts, to the extent applicable to the nature of the Visa Services provided by the relevant Sub-Sub-Processor will provide at least the same level of protection for Customer Personal Information as set out in this DPA.

5.4  Staff.  Sub-Processor shall ensure that persons authorized to Process Customer Personal Information have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. 

5.5  Security of Processing.  Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Sub-Processor shall implement technical and organizational measures to ensure a level of security appropriate to that risk.  In assessing the appropriate level of security, Sub-Processor shall, in particular, take into account the sensitivity of the Personal Information and the risks that are presented by the Processing, in particular from unauthorized or unlawful Processing, accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Customer Personal Information transmitted, stored or otherwise Processed.  Sub-Processor shall provide reasonable assistance to Reseller in ensuring it meets its own compliance obligations with respect to these same security measures. Visa, Reseller and its customers shall also comply with PCI-DSS as set out in the Agreement.

6  Security Breach. The applicable party, Visa, Reseller or its customer, shall promptly and thoroughly investigate all allegations of unauthorized access to, use or disclosure of Customer Personal Information.   In the event of an actual Security Breach (defined below) affecting Customer Personal Information Visa, Reseller and Reseller’s customer shall cooperate and assist one another in good faith as needed to comply with Applicable Data Protection Laws including as applicable, notifying a Supervisory Authority of the Security Breach and communicating the Security Breach to the relevant Data Subjects.

6.1.1  In the event of an actual Security Breach affecting Customer Personal Information contained in:

6.1.1.1  Visa’s systems, Visa shall notify Reseller of the Security Breach without undue delay and continue to keep Reseller informed on a regular basis of the progress of investigation and remediation efforts.  Notice in accordance with this section shall be made by sending an email and/or text message to the email address and/or mobile phone number registered by Reseller in the Business Center. For Controller Services, Reseller and its customer impacted by the Security Breach shall cooperate and assist Visa as necessary for Visa to communicate the Security Breach to the relevant Supervisory Authorities.

6.1.1.2  Reseller or Reseller’s customer’s systems, the Reseller may elect to notify Visa of the Security Breach, and such notice should be made by sending an email to [email protected].  Visa shall cooperate and assist the Reseller as necessary for Reseller to communicate the Security Breach to the relevant Supervisory Authorities.

6.1.2  Reseller or its applicable customer shall be responsible for communicating any Security Breach to End Users if notice is required under Applicable Data Protection Laws.

6.1.3  Except as required by applicable law or regulation the parties, including Reseller’s customers, will not make (or permit any third party to make) any statement concerning the Security Breach that directly or indirectly references the other party, unless the other party provides its explicit written authorization.

6.1.4  To the extent that a Security Breach was caused by Reseller, Reseller’s customers or End Users, Reseller shall be responsible for the costs arising from the Sub-Processor’s provision of assistance under this section 6.

7  Deletion and Retention.  Sub-Processor shall, at the choice of Reseller, delete or return all Customer Personal Information upon termination of the Agreement and delete existing copies unless storage is required by applicable law.

8  Miscellaneous.  The terms of this DPA shall apply only to the extent required by Applicable Data Protection Law.  To the extent not inconsistent herewith, the applicable provisions of the Agreement(s) (including without limitation, indemnifications, limitations of liability, enforcement, and interpretation) shall apply to this DPA.  In the event of any conflict between this DPA and the terms of an applicable Agreement, the terms of this DPA shall control solely with respect to data processing terms where required by Applicable Data Protection Law, and, in all other respects, the terms of the applicable Agreement shall control.  Notwithstanding any term or condition of the DPA, the DPA does not apply to any data or information that does not relate to one or more identifiable individuals under Applicable Data Protection Law, such as data that has been aggregated, de-identified or anonymized, or to the extent that Visa and you have entered separate data processing terms that address the subject matter hereof.

9  Definitions.  Unless otherwise defined in the Agreement (including this DPA), all terms in this DPA shall have the definitions given to them in Applicable Data Protection Law.

SCHEDULE A
CALIFORNIA CONSUMER PRIVACY ACT

This CCPA Schedule applies in addition to any terms set forth in the body of the DPA (and is incorporated therein) when the CCPA applies to your use of Transaction Services or if Applicable Data Protection Law imposes a comparable requirement outlined under Schedule A.  Capitalized terms not defined herein have the meaning assigned to them under the DPA.  To the extent there are any conflicts between this CCPA Schedule and the DPA, this CCPA Schedule shall prevail.

1  Visa shall not:

(i)  sell, or share for cross-contextual behavioral advertising, Customer Personal Information;

(ii)  combine Customer Personal Information with personal information obtained from different sources;

(iii)  retain, use, or disclose Customer Personal Information other than for the specific purposes set forth in the body of the DPA; or

(iv)  where applicable, use any Sensitive Personal Information received from Customer other than to assist the Customer in purposes authorized by Customer instruction;

in each case, except as required to perform a business purpose defined in this Agreement or as permitted by Applicable Data Protection Law.

2  To the extent required by Applicable Data Protection Law, this CCPA Schedule constitutes its certification to the Processing restrictions herein to enable Customer to:

(i)  ensure Customer Personal Information is used consistent with Applicable Data Protection Law;

(ii)  stop and remediate unauthorized use of Customer Personal Information, and

(iii)  to conduct reasonable assessments of Visa’s policies and technical and organizational measures. Visa grants Customer the rights set forth in Schedule B, Section 4 for the purposes of Section 2(iii) of this Schedule.

3  Sub-processor obligations pursuant to the CCPA shall be governed by Section 4.3 of the DPA.

4  Each of Visa and Customer shall comply with applicable provisions of the CCPA, including, in the case of the Customer, to provide required notices and disclosures with respect to the obligations of the business under the CCPA; and in the case of Visa, to notify Customer promptly (and, in any event, within any period required by law) upon making a determination that it can no longer meet its obligations with respect to Customer Personal Information under the CCPA.

SCHEDULE B
GENERAL DATA PROTECTION REGULATION

This GDPR Schedule applies in addition to any terms set forth in the body of the DPA (and is incorporated therein) when the GDPR applies to Reseller’s use of Visa Services or if Applicable Data Protection Law imposes a comparable requirement outlined under Schedule B.  Capitalized terms not defined herein have the meaning assigned to them under the DPA.  To the extent there are any conflicts between this GDPR Schedule and the DPA, this GDPR Schedule shall prevail.

1  Processing of Customer Personal Information.  Sub-Processor shall Process Customer Personal Information only on documented reasonable instructions from Reseller (including instructions with respect to transfers of Customer Personal Information to a third country, if applicable) unless Sub-Processor is required to otherwise Process Customer Personal Information by Applicable Data Protection Law.  In such circumstances, Sub-Processor shall inform Reseller of that legal requirement before Processing, unless prohibited from doing so by applicable law, on important grounds of public interest. Sub-Processor shall immediately inform Reseller if, in Sub-Processor’s opinion, Reseller’s instructions would be in breach of Applicable Data Protection Law.  Reseller agrees that Sub-Processor shall be under no obligation to take actions designed to form any such opinion.

2  Use of Sub-Sub-Processor

2.1  Reseller provides authorization for Sub-Processor to engage with the Sub-Sub-Processors listed in the Business Center.  Sub-Processor reserves the right to maintain its Sub-Sub-Processor list through means such as publication of its Sub-Sub-Processor list online.

2.2  Sub-Processor shall inform Reseller of any intended changes concerning the addition or replacement of other Sub-Sub-Processors to give Reseller’s clients a reasonable opportunity to object to such changes.  If a client of Reseller objects to Processor’s change or addition of a Sub-Sub-Processor (“Objecting Client”), Reseller shall promptly notify Sub-Processor of objections in writing within 10 business days after receipt of Sub-Processor’s notice of such change or addition. 

2.3  Sub-Processor may, at its option, undertake reasonable efforts to make available to Reseller’s Objecting Client a change in the Visa Services or recommend a commercially reasonable change to the Objecting Client’s configuration or use of the Visa Services to avoid Processing of Customer Personal Information by the objected-to new Sub-Sub-Processor.  If Sub-Processor is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Reseller may, at its client’s request, terminate the Agreement for the Objecting Client with respect to only those aspects of the Visa Services which cannot be provided by Sub-Processor without the use of the objected-to new Sub-Sub-Processor by providing written notice to Sub-Processor.

2.4  Sub-Processor agrees not to impose a penalty for any termination under section 2 of this GDPR Schedule on Reseller.

3  Data Protection Impact Assessments and Prior Consultation with Regulator.  Sub-Processor shall provide reasonable assistance to Reseller with any legally required (i) data protection impact assessments; and (ii) prior consultations initiated by Reseller with its regulator in connection with such data protection impact assessments.  Such assistance shall be strictly limited to the Processing of Customer Personal Information by Sub-Processor on behalf of Reseller’s under the Agreement taking into account the nature of the Processing and information available to the Sub-Processor.

4  Demonstrating Compliance with this DPA

4.1  Sub-Processor shall make available to Reseller all information necessary to demonstrate compliance with its obligations under this DPA and allow for (and contribute to) audits, including inspections conducted by Reseller or another auditor under the instruction of the Reseller for the same purposes of demonstrating compliance with obligations set out in this DPA.

4.2  Reseller’s right under section 4 of this GDPR Schedule is subject to the following:

4.2.1  If Sub-Processor can demonstrate compliance with its obligations set out in this DPA by adhering to an approved code of conduct, by obtaining an approved certification or by providing Reseller with an audit report issued by an independent third party auditor (provided that Reseller will comply with appropriate confidentiality obligations as set out in the Agreement and shall not use such audit report for any other purpose), Reseller agrees that it will not conduct an audit or inspection under this section 4;

4.2.2  In acknowledgement of the time, expense and disruption to business associated with performing audits and inspections involving interviews and onsite visits, Reseller agrees to only conduct such audits and inspections on condition that Reseller can demonstrate such audit or inspection is necessary beyond the information made available by Sub-Processor under section 4 above.  Such audits and inspections, shall be at reasonable intervals (but not more than once per year) upon not less than 60 days' notice and at a date mutually agreed by the Parties, provided that the audit will (i) not disrupt Sub-Processor's business; (ii) be conducted during business hours and at the Reseller’s expense; (iii) not interfere with the interests of Sub-Processor’s other customers; and (iv) not exceed a period of two successive business days.

5  Cross-Border Transfers for Sub-Processor Services.  Sub-Processor shall comply with Reseller’s documented instructions concerning the Transfer of Customer Personal Information to a third country.  Sub-Processor shall only Transfer any Customer Personal Information outside the Reseller’s customer’s applicable jurisdiction or the End-User’s resident jurisdiction, including, without limitation, outside the European Economic Area (“EEA”), the UK or Switzerland, in compliance with the Applicable Data Protection Law.  Reseller agrees and acknowledges that Sub-Processor Transfers and stores certain Customer Personal Information (including relating to individuals located in the EEA) in the United States.

5.1  Transfers subject to the GDPR, UK GDPR or Swiss DP Laws: Module 3 (Transfer processor to processor) of the EEA Standard Contractual Clauses shall apply with respect to any Transfer of Customer Personal Information from the EEA, UK or Switzerland to Visa and any of its affiliated entities in the United States or other third countries ("Visa Entities"). The parties acknowledge and agree that Module 3 (Transfer processor to processor) of the EEA Standard Contractual Clauses is hereby incorporated by reference and;

5.1.1  Reseller shall be deemed to be the “data exporter” and the Visa Entities shall be the "data importer";

5.1.2  Clause 7 – Docking clause shall apply;

5.1.3  Clause 9 – Use of subprocessors Option 2 shall apply and the “time period” shall be 10 business days;

5.1.4  Clause 11(a) – Redress the optional language shall not apply;

5.1.5  Clause 13(a) – Supervision

5.1.5.1  Where the data exporter is established in an EU Member State the following shall apply: “The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C , shall act as competent supervisory authority.”

5.1.5.2  Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of the GDPR the following shall apply: “The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.”

5.1.5.3  Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of the GDPR in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of the GDPR, the following shall apply: “The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.”

5.1.6  Clause 17 – Governing law Option 1 shall apply and the “Member State” shall be Ireland;

5.1.7  Clause 18 – Choice of forum and jurisdiction the Member State shall be Ireland; and

5.1.8  the information in Exhibit 1 (Table 1) of this GDPR Schedule is incorporated into Annexes 1, 2 and 3 of the EEA Standard Contractual Clauses.

5.1.9  Transfers subject to the UK GDPR: Where the Transfer is subject to the UK GDPR, the EEA Standard Contractual Clauses shall be read in accordance with, and deemed amended by, the provisions of Part 2 (Mandatory Clauses) of the UK IDTA.  For the purposes of Table 4 in Part 1 (Tables) of the UK IDTA, the parties select the “neither party” option. Otherwise, the Parties confirm that the information required for the purposes of Part 1 (Tables) of the UK IDTA is set out in Exhibit 1. If there is any conflict or inconsistency between a term in the body of this DPA, an Agreement and a term in Module 3 (Transfer processor to processor) of the EEA Standard Contractual Clauses, incorporated into this DPA, the term in Module 3 (Transfer processor to processor) of the EEA Standard Contractual Clauses shall take precedence.

6  Joint Controller Obligations.  The obligations in this DPA, including those set out below in this GDPR Schedule, shall constitute the written arrangement allocating responsibilities between joint controllers required under Article 26 of the GDPR with respect to the Controller Services.

7  Reasonable Assistance.  With respect to the Controller Services, Visa and Reseller’s customers shall assist one another as reasonably required, in meeting any regulatory obligations in relation to data security, notification of a Security Breach, and data protection impact assessments for the Controller Services.

8  Notice.  For the avoidance of doubt, with respect to the Controller Services, Reseller’s Customer shall provide its End-User(s) with all privacy notices, information and any necessary choices and shall obtain any necessary consents to enable the parties to comply with Applicable Data Protection Law with respect to the Visa Services.

9  Data Subject Rights. Reseller’s customer shall be the designated point of contact for the Data Subject with respect to Data Subject Rights requests for Controller Services, and Visa shall reasonably cooperate with and assist Reseller’s customers in the execution and fulfilment of their obligations under Applicable Data Protection Laws in relation to such requests.

10  Supervisory Authority.  Visa and Reseller’s customers shall without undue delay notify each other upon receipt of any correspondence from a Supervisory Authority in respect of the Controller Services where and to the extent permitted by applicable law.

11  Security of Processing.  Visa and Reseller’s customers shall each be responsible for ensuring adequate security in respect of processing of Personal Information for Controller Services that takes place within that party’s own systems.

12  Security Breach.  For the avoidance of doubt, in the event of a Security Breach related to Controller Services, the section 6 of the body of the Agreement shall govern.

13  Cross border transfers for Controller Services

13.1  Transfers subject to the GDPR, UK GDPR or Swiss DP Laws: Module 4 (transfer processor to controller) of the EEA Standard Contractual Clauses shall apply with respect to any Transfer of Customer Personal Information from the EEA, UK, or Switzerland to Visa in the United States, solely when Visa is acting as a controller for the purposes of the Controller Services. The parties acknowledge and agree that Module 4 (transfer processor to controller) of the EEA Standard Contractual Clauses is hereby incorporated by reference and;

13.1.1  Reseller shall be deemed to be the “data exporter” and the Visa Entities shall be the "data importer";

13.1.2  Clause 7 – Docking clause shall apply;

13.1.3  Clause 11(a) – Redress the optional language shall not apply;

13.1.4  Clause 17 – Governing law the country shall be Ireland;

13.1.5  Clause 18 – Choice of forum and jurisdiction shall be the courts of Ireland;

13.1.6  the information in Exhibit 1 (Table 1) of this GDPR Schedule is incorporated into Annexes 1, 2 and 3 of the EEA Standard Contractual Clauses.

13.2  Transfers subject to the UK GDPR: where the Transfer is subject to the UK GDPR, the EEA Standard Contractual Clauses shall be read in accordance with, and deemed amended by, the provisions of Part 2 (Mandatory Clauses) of the UK IDTA.  For the purposes of Table 4 in Part 1 (Tables) of the UK IDTA, the parties select the “neither party” option. Otherwise, the Parties confirm that the information required for the purposes of Part 1 (Tables) of the UK IDTA is set out in Exhibit 1.

13.3  if there is any conflict or inconsistency between a term in the body of this DPA, an Agreement and a term in Module 4 (transfer processor to controller) of the EEA Standard Contractual incorporated into this DPA, the term in the EEA Standard Contractual Clauses shall take precedence.

EXHIBIT 1
INFORMATION REQUIRED FOR THE EEA STANDARD CONTRACTUAL CLAUSES AND THE UK IDTA

EXHIBIT 2
DETAILS OF PROCESSING CUSTOMER PERSONAL INFORMATION

1  Details of Processing in respect of the Sub-Processor Services
The table below includes certain details of the Processing of Customer Personal Information in respect of the Sub-Processor Services as required by Article 28(3) of the GDPR. Each of the service descriptions below apply to the extent that Customer uses such service under the Agreement.

2  Details of Processing in respect of the Controller Services
The table below includes certain details of the Processing of Customer Personal Information in respect of the Controller Services. Each of the service descriptions below apply to the extent that Customer uses such service under the Agreement.