Updated February 1st 2023
This UPSELL WIZARD Data Processing Addendum ("Addendum") amends and forms a part of the written or electronic agreement(s) (the "Agreement") by and between the legal entity subject to the Agreement ("Merchant") and PAYWHIRL, Inc. ("UPSELL WIZARD"), a California, United States corporation with offices at 9452 Telephone Rd., #140 CA, 93004, governing the Merchant's use of UPSELL WIZARD's products and services (the "Service"). Capitalized terms not otherwise defined in this Addendum shall have the same definitions as in the Agreement or the meaning ascribed to the corresponding terms in the Data Protection Legislation.
"Business", "Controller", "Processor", "Processing/Process/Processed", and "Service Provider" shall be given the meanings given to them by the applicable Data Protection Legislation.
"Data Subject" means the identified or identifiable natural person to whom Personal Data relates.
"Data Subject Request" means the exercise by Data Subjects of their rights in accordance with applicable Data Protection Legislation in respect of Personal Information.
"Data Protection Legislation" means, collectively: (i) the GDPR, (ii) the California Consumer Privacy Act, as amended by the California Privacy Rights Act of 2020, codified at Cal. Civ. Code §§ 1798.100 – 1798.199.100 ("CCPA"), (iii) any legislation, and/or regulation implementing or made pursuant to them or which amends, replaces, re-enacts or consolidates any of them, (iv) applicable data breach notification statutes, and (v) all other applicable laws relating to Processing of Personal Data and privacy that may exist in any relevant jurisdiction, to the extent applicable to the relevant Personal Data or Processing thereof under the Agreement.
"EEA" means the European Economic Area.
"GDPR" stands for "General Data Protection Regulation" and means: (i) the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ("EU GDPR"); (ii) the EU GDPR as it forms part of United Kingdom ("UK") law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 ("UK GDPR"); and (iii) any applicable implementing or supplementary legislation in any member state of the EEA or the UK (including the UK Data Protection Act 2018).
"Personal Information" means information that constitutes "Personal Data", "Personal Information", "Personally Identifiable Information", or similar information as defined by applicable Data Protection Legislation that UPSELL WIZARD Processes pursuant to the Agreement.
"Personal Data Breach" means a breach of UPSELL WIZARD's security that has resulted in the accidental or unlawful destruction, acquisition, loss, alteration, unauthorized disclosure of, or access to, Personal Information in UPSELL WIZARD's possession, custody or control. Personal Data Breaches do not include unsuccessful attempts or activities that do not compromise the security of Personal Information, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.
"Relevant Body" (i) in the context of the UK and the UK GDPR, means the UK Information Commissioner's Office and/or UK Government (as and where applicable); and/or (ii) in the context of the EEA and EU GDPR, means the European Commission.
"Restricted Country" (i) in the context of the UK, means a country or territory outside the UK; and (ii) in the context of the EEA, means a country or territory outside the EEA (which shall, as and where applicable, be interpreted in line with Article FINPROV.10A(1) of the Trade and Cooperation Agreement between the EU and the UK), that the Relevant Body has not deemed to provide an 'adequate' level of protection for Personal Information pursuant to a decision made in accordance with Article 45(1) of the GDPR.
"Restricted Data Transfer" means the disclosure, grant of access, or other transfer of Personal Information to: (i) in the context of the EEA, any country or territory outside the EEA which does not benefit from an adequacy decision by the European Commission pursuant to Article 45 of the GDPR; and (ii) in the context of the UK, any country or territory outside the UK which does not benefit from an adequacy decision by the UK Information Commissioner's Office pursuant to Article 45 of the GDPR.
"Security Measures" means the technical and organizational security measures to be applied by Processor in respect of the Personal Information, as set out in Appendix 2.
"Standard Contractual Clauses" or "SCCs" means (i) where the GDPR applies, the clauses annexed to European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914&from=EN ("EU SCCs"); and (ii) where the UK GDPR applies, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner under Section 119A(1) Data Protection Act 2018 ("UK IDTA") (in each case, as updated, amended or superseded from time to time).
"Supervisory Authority" means: (i) in the context of the EU GDPR, any authority within the meaning of Article 4(21) of the EU GDPR; and (ii) in the context of the UK GDPR, the UK Information Commissioner's Office.
"UK" means the United Kingdom of Great Britain and Northern Ireland.
In the course of UPSELL WIZARD providing the Service under the Agreement, Merchant may from time-to-time provide or make available Personal Information to UPSELL WIZARD for the limited and specific purposes of providing the Service under the Agreement. The Parties acknowledge and agree that, in relation to any such Personal Information provided or made available to UPSELL WIZARD for Processing by UPSELL WIZARD under the Agreement, the Merchant will be the Controller and UPSELL WIZARD will be the Processor for the purposes of the GDPR and the Merchant will be the Business and UPSELL WIZARD will be the Service Provider for purposes of the CCPA.
When UPSELL WIZARD Processes Personal Information in the course of providing the Service, UPSELL WIZARD will:
- process the Personal Information as a Data Processor, for the purpose of providing the Service in accordance with documented instructions from the Merchant (provided that such instructions are commensurate with the functionalities of the Service), to perform UPSELL WIZARD's obligations and exercise UPSELL WIZARD's rights under the Agreement, including to maintain records relating to the Service and comply with any legal or self-regulatory obligations relating to the Service, and as may subsequently be agreed to by the Merchant. UPSELL WIZARD is prohibited from retaining, using, or disclosing Personal Information provided or made available by Merchant ("Merchant Data") for any purpose other than for the specific purpose of performing the Services specified in the Agreement. If UPSELL WIZARD is required by applicable laws to Process the Personal Information for any other purpose, UPSELL WIZARD will provide the Merchant with prior notice of this requirement, unless UPSELL WIZARD is prohibited by such laws from providing such notice;
- not sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate Merchant Data to any third party for monetary or other valuable consideration. UPSELL WIZARD shall not share, as defined by applicable Data Protection Legislation, any Merchant Data;
- commencing January 1, 2023, UPSELL WIZARD will not combine any Personal Information that UPSELL WIZARD receives from, or on behalf of, the Merchant with information that it receives from, or on behalf of, another source provided that UPSELL WIZARD may combine Personal Information as authorized by Data Protection Legislation.
- notify the Merchant if, in UPSELL WIZARD's opinion, the Merchant's instruction for the Processing of Personal Information infringes applicable Data Protection Legislation;
- notify the Merchant promptly, to the extent permitted by law, upon receiving an inquiry or complaint from a Supervisory Authority relating to UPSELL WIZARD's Processing of the Personal Information;
- upon Merchant's written request, provide Merchant with such assistance as may be reasonably necessary and technically feasible in fulfilling its legal obligations under Data Protection Legislation, including data protection impact assessments and prior consultations with Supervisory Authorities which UPSELL WIZARD reasonably considers to be required of it by Data Protection Legislation, in each case solely in relation to Processing of Personal Information by, and taking into account the nature of the Processing by, and information available to, UPSELL WIZARD;
- upon the Customer's written request, provide the Customer with such reasonable assistance as may be necessary and technically feasible, taking into account the nature and circumstances of the processing and UPSELL WIZARD's role as a Processor, to allow the Merchant to fulfill its obligation to respond to Data Subject Requests;
- upon receipt of any Data Subject Request that relates to Personal Information that UPSELL WIZARD Processes for the Customer, UPSELL WIZARD may advise the Data Subject to submit the request to Merchant and Merchant is solely responsible for responding to any such requests. UPSELL WIZARD's notification of or response to a Data Subject Request under this Section is not an acknowledgement by UPSELL WIZARD of any fault or liability with respect to the Data Subject Requests;
- implement and maintain appropriate technical and organizational measures designed to protect the Personal Information and ensure a level of security appropriate to the risk. UPSELL WIZARD's measures comprise those documented in the Security Measures listed in Appendix 2;
- provide the Merchant, upon the Merchant's reasonable written request, with up-to-date attestations, reports or extracts thereof, where available, from a source charged with auditing UPSELL WIZARD's data protection practices (e.g., external auditors, internal audit, data protection auditors), or suitable certifications, to enable the Merchant to assess compliance with the terms of this Addendum;
- reasonably ensure its employees, agents, and service providers comply with the obligations and restrictions applicable to UPSELL WIZARD under applicable Data Protection Legislation. UPSELL WIZARD shall reasonably notify the Merchant if it makes a determination that it can no longer meet its obligations. Upon such notification, the Merchant may take reasonable steps to remediate any unauthorized use of Merchant Data;
- notify the Merchant promptly upon becoming aware of and confirming any Personal Data Breach impacting Merchant Data. The Merchant is solely responsible for complying with Data Breach notification laws applicable to the Merchant and fulfilling any third-party notification obligations related to any Personal Data Breach. UPSELL WIZARD's notification of, or response to, a Personal Data Breach under this Section is not an acknowledgement by UPSELL WIZARD of any fault or liability with respect to the Personal Data Breach;
- ensure that its personnel who access the Personal Information have committed themselves to confidentiality or are under appropriate statutory obligations of confidentiality; and
- upon termination of the Agreement or expiry of Service involving the Processing of Personal Information, UPSELL WIZARD shall cease all Processing of Personal Information related to such Service except as set out in this Section. UPSELL WIZARD will promptly initiate its process to delete or anonymize the Personal Information, subject to UPSELL WIZARD retaining any copies required by applicable laws (and in that case, for such period as may be required by such applicable laws). If the Merchant requests a copy of such Personal Information within 30 days of termination, UPSELL WIZARD will provide the Merchant with a copy of such Personal Information.
The Merchant shall ensure that it is entitled to give access to the relevant Personal Information to UPSELL WIZARD so that UPSELL WIZARD may lawfully Process Personal Information in accordance with the Agreement on the Merchant's behalf. The Merchant shall:
- comply with its obligations under the Data Protection Legislation which arise in relation to this Addendum, the Agreement and the receipt of the Service;
- not do or omit to do anything which causes UPSELL WIZARD (or any Sub-processor) to breach any of its obligations under the Data Protection Legislation; and
- to the extent Merchant receives any inquiry or request regarding UPSELL WIZARD’s compliance with Data Protection Legislation, reasonably inform UPSELL WIZARD of the inquiry or request and any necessary information.
As part of providing the Service, Data Subject's Personal Information will be Processed in the United States. Such Processing will be completed in compliance with relevant Data Protection Legislation.
Merchant acknowledges and hereby agrees that UPSELL WIZARD may transfer to, access and process Personal Information in a Restricted Country, as necessary to provide the Service in accordance with the Agreement. UPSELL WIZARD will make any such Restricted Data Transfers in compliance with the applicable Data Protection Legislation. If UPSELL WIZARD's compliance with Data Protection Legislation applicable to Restricted Data Transfers is affected by circumstances outside of UPSELL WIZARD's control, including if a legal instrument for Restricted Data Transfers is invalidated, amended, or replaced, then the Merchant and UPSELL WIZARD will work together in good faith to reasonably resolve such non-compliance.
Solely to the extent required to ensure the legality of Restricted Transfers, in the event that the transfer of Personal Information from Controller to UPSELL WIZARD involves a transfer of Personal Information, that is subject to GDPR or UK GDPR, to a Restricted Country, the SCCs shall be incorporated by reference and form an integral part of this Addendum with Controller as "data exporter" and UPSELL WIZARD as "data importer". For the purposes of the EU SCCs: (i) Module Two (controller to processor) terms shall apply and the module one, three and four terms shall be deleted; (ii) Clause 7 (Docking Clause) shall not apply; (iii) in Clause 9, Option 2 shall apply and the "time period" shall be 14 days; (iv) in Clause 11, the optional language shall not apply; (v) in Clause 17 (Option 1), the EU SCCs shall be governed by Irish law; (vi) in Clause 18(b), disputes shall be resolved before the courts of Ireland; (vii) Annex 1 and 3 of the EU SCCs shall be populated with the information set out in Appendix 1; and (viii) Annex 2 of the EU SCCs shall be deemed populated with the information set out in Appendix 2 . For the purposes of the UK IDTA: (i) the Appendices or Annexes of the UK IDTA shall be populated with the relevant information set out in this DPA; and (ii) the UK IDTA shall be governed by the laws of, and disputes shall be resolved before the courts of, England and Wales. If and to the extent the applicable SCCs conflict with any provision of this Addendum regarding the transfer of Personal Information from the Merchant to UPSELL WIZARD, the SCCs shall prevail to the extent of such conflict.
In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail. For avoidance of doubt and to the extent allowed by applicable law, any and all liability under this Addendum, including limitations thereof, will be governed by the relevant provisions of the Agreement.
The Merchant acknowledges and agrees that UPSELL WIZARD may amend this Addendum from time to time by posting the relevant amended and restated Addendum on UPSELL WIZARD's website, available at https://upsellwizard.com/data-protection and such amendments to the Addendum are effective as of the date of posting. The Merchant's continued use of the Service after the amended Addendum is posted to UPSELL WIZARD's website constitutes the Merchant's agreement to, and acceptance of, the amended Addendum. If the Merchant does not agree to any changes to the Addendum, the Merchant should cease use of the Service immediately.
Save as specifically modified and amended in this Addendum, all of the terms, provisions and requirements contained in the Agreement shall remain in full force and effect and govern this Addendum. If any provision of the Addendum is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Addendum shall remain operative and binding on the parties.
The terms of this Addendum shall be governed by and interpreted in accordance with the laws of the State of California and the laws of the United States applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of California with respect to any dispute or claim arising out of or in connection with this Addendum.
Appendix 1 - Data Processing Details
This Appendix includes certain details of the Processing of Personal Information: (i) as required by Article 28(3) of the GDPR; and (ii) where applicable, to populate Appendix 1 to the Standard Contractual Clauses.
UPSELL WIZARD's activities and purpose of the Processing
UPSELL WIZARD provides an upsell and cross-sell software service.
Subject matter and duration of the Processing of Personal Information
The subject matter and duration of the Processing of Personal Information is part of the Service under the Agreement. Start date is the date Personal Information is first Processed by Processor. End date is the date of termination or expiry of the Agreement. The frequency of the processing is continual and ongoing during the term of the Agreement.
The nature and purpose of the Processing of Personal Information
The processing of certain Personal Information by the Processor on behalf of the Controller in relation to allowing access of the Merchants to the Processor's upsell and cross-sell software service.
The categories of Personal Information to be Processed
Personal Information that UPSELL WIZARD receives as described at: https://upsellwizard.com/privacy
The categories of Data Subjects to whom Personal Information Relates
- Data Subjects about whom UPSELL WIZARD collects Personal Information in its provision of Service as a Processor, including Merchants.
Appendix 2 - Security Measures
As from the effective date of the Addendum, UPSELL WIZARD will implement and maintain the security measures set out in this Appendix 2 ("Security Measures").
- Physical Access Control: UPSELL WIZARD shall take reasonable measures to prevent physical access by unauthorized persons to facilities where Personal Information is Processed. Safeguards implemented at data processing facilities are controlled by third-party vendors and may include security personnel, alarm systems, access control systems, and video/CCTV surveillance.
- System Access Control: UPSELL WIZARD shall take reasonable measures to prevent unauthorized access to systems processing Personal Information. Safeguards implemented may include multi-factor authentication, change management processes, and system-level logging.
- Data Access Control: UPSELL WIZARD shall take reasonable measures to allow for Personal Information to be accessed and/or managed by authorized personnel only and protect against Personal Information being read, modified, or removed without authorization.
- Transmission Control: UPSELL WIZARD shall take reasonable measures to prevent the disclosure of Personal Information during transmission. Safeguards implemented will include encryption over public networks.
- Data Availability Control: UPSELL WIZARD shall take reasonable measures to protect against accidental destruction or loss of Personal Information, Safeguards implemented may include regular backups of Personal Information, restoration testing of Personal Information backups, replication of Personal Information backups across multiple sites, and disaster recovery plans.
- Data Segregation Control: UPSELL WIZARD shall take reasonable measures to segregate Personal Information on a per Merchant basis. Safeguards implemented may include application-level controls for logical separation of Personal Information.
UPSELL WIZARD may update or modify such Security Measures from time to time, provided that such updates and modifications do not materially decrease the overall security of the Service.