DATA PROCESSING AGREEMENT
[Last Updated January 2023]
This Data Processing Agreement (“DPA”) is governed and hereby attached to the master services agreement and any other agreement between the parties (“Agreement”) executed by and between HedgeWiz Pure Risk Management Solutions Ltd. (“Hedgewiz”), and you, a customer, user or individual of the Services as defined hereunder (“Customer”).
All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
WHEREAS, Hedgewiz is the developer and operator of a cloud-based SaaS solution enabling international money transfer and ancillary services, all as agreed by the parties in the applicable order form or other ordering documents that are incorporated in the Agreement (“Hedgewiz Technology” and “Ordering Documentation”) (collectively the “Service(s)”);
WHEREAS, the Services may require Hedgewiz to Process Personal Data (as such terms are defined below) on the Customer’s behalf subject to the terms and conditions of this DPA; and
WHEREAS, the Parties desire to supplement this DPA to achieve compliance with the UK, EU, Swiss, and other data protection laws and agree on the following:
1.1. “Adequate Country” is a country that received an adequacy decision from the European Commission.
1.2. “Customer Data” means Customer Content (as defined in the Agreement) and any Personal Data uploaded or processed during the use of the Services, all as detailed in Annex I attached herein.
1.3. The terms “Personal Data”, “Controller”, “Processor”, “Data Subject”, “Processing” (and “Process“), “Personal Data Breach”, “Special Categories of Personal Data” and “Supervisory Authority”, shall all have the same meanings as ascribed to them in the EU Data Protection Law.
1.4. “Data Protection Law” means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law, UK Data Protection Laws, Swiss Data Protection Laws and Israeli Law) as may be amended or superseded from time to time.
1.5. “EEA” means the European Economic Area.
1.6. “EU Data Protection Law” means the (i) EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); (ii) Regulation 2018/1725; (iii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended (e-Privacy Law); (iv) any national data protection laws made under, pursuant to, replacing or succeeding (i) and (ii); (v) any legislation replacing or updating any of the foregoing; and (vi) any judicial or administrative interpretation of any of the above, including any binding guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority.
1.7. “Israeli Law” means Israeli Privacy Protection Law, 5741-1981, the regulations promulgated pursuant thereto, including the Israeli Privacy Protection Regulations (Data Security), 5777-2017 and other related privacy regulations.
1.8. “Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data (including Customer Data). Any Personal Data Breach will comprise a Security Incident.
1.9. “Standard Contractual Clauses” or “SCC” mean the standard contractual clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council adopted by the European Commission Decision 2021/914 of 4 June 2021, which may be found here: Standard Contractual Clauses.
1.10. “Swiss Data Protection Laws” or “FADP” shall mean (i) Swiss Federal Data Protection Act (dated June 19, 1992, as of March 1, 2019) (“FDPA”); (ii) The Ordinance on the Federal Act on Data Protection (“FODP”); (iii) any national data protection laws made under, pursuant to, replacing or succeeding and any legislation replacing or updating any of the foregoing.
1.11. “Swiss SCC” shall mean the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner.
1.12. ”UK Data Protection Laws” shall mean the Data Protection Act 2018 (DPA 2018), as amended, and EU General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, as incorporated into UK law as the UK GDPR, as amended, and any other applicable UK data protection laws, or regulatory Codes of Conduct or other guidance that may be issued from time to time.
1.13. ”UK GDPR” shall mean the GDPR as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time).
1.14. “UK Standard Contractual Clauses” or “UK SCC” means the UK “International Data Transfer Addendum to The European Commission Standard Contractual Clauses” available at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf as adopted, amended or updated by the UK Information Commissioner Office (“ICO”), Parliament or Secretary of State.
Any other terms that are not defined herein shall have the meaning provided under the Agreement or applicable Law. A reference to any term or section of UK Data Protection Laws or GDPR means the version as amended. Any references to the GDPR in this DPA shall mean the GDPR or UK GDPR depending on the applicable Law.
2. ROLES AND DETAILS OF PROCESSING
2.1. The parties agree and acknowledge that under the performance of their obligations set forth in the Agreement, and with respect to the Processing of Customer Data, Hedgewiz is acting as a Data Processor and Customer is acting as a Data Controller. Each party shall be individually and separately responsible for complying with the obligations that apply to such party under applicable Data Protection Law.
2.2. The subject matter and duration of the Processing carried out by the Processor on behalf of the Controller, the nature and purpose of the Processing, the type of Personal Data and categories of Data Subjects are described in Annex I attached hereto.
3. REPRESENTATIONS AND WARRANTIES
3.1. Hedgewiz represents and warrants that it shall Process Customer Data, on behalf of the Customer (subject to Article 28 of the GDPR), solely for the purpose of providing the Service, all in accordance with Customer’s written instructions under the Agreement and this DPA. Notwithstanding the above, in the event Hedgewiz is required under applicable laws, including Data Protection Law or any union or member state regulation, to Process Customer Data other than as instructed by Customer, Hedgewiz shall make its best efforts to inform the Customer of such requirement prior to Processing such Customer Data, unless prohibited under applicable law.
3.2. Hedgewiz shall provide reasonable cooperation and assistance to the Customer in ensuring compliance with its obligation to carry out data protection impact assessments with respect to the Processing of its Customer Data and to consult with the Supervisory Authority (as applicable).
3.3. Where applicable, Hedgewiz shall assist the Customer in ensuring that Personal Data Processed is accurate and up to date, by informing the Customer without delay if it becomes aware of the fact that the Personal Data it is processing is inaccurate or has become outdated. Notwithstanding, Hedgewiz shall not be required to review the content of Customers Data as provided by the Customer.
3.4. Hedgewiz shall take reasonable steps to ensure: (i) the reliability of its staff and any other person acting under its supervision who may come into contact with, or otherwise have access to and Process Customer Data; (ii) that persons authorized to process the Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; and (iii) that such personnel are aware of their responsibilities under this DPA and any applicable Data Protection Laws.
4. DATA SUBJECTS RIGHTS AND REQUEST
4.1. It is agreed that where Hedgewiz receives a request from a Data Subject or an applicable authority in respect of Customer Data, where applicable, Hedgewiz will direct the Data Subject or the applicable authority to the Customer in order to enable the Customer to respond directly to the Data Subject’s or the applicable authority’s request, unless otherwise required under applicable laws. Parties shall provide each other with commercially reasonable cooperation and assistance in relation to the handling of a Data Subject’s or applicable authority’s request, to the extent permitted under Data Protection Law.
5.1. The Customer acknowledges that Hedgewiz may transfer Customer Data to and otherwise interact with third party data Processors (“Sub-Processor”). The Customer hereby authorizes Hedgewiz to engage and appoint such Sub-Processors as listed in Annex II, to Process Customer Data, as well as permits each Sub-Processor to appoint a Sub-Processor on its behalf. Hedgewiz may continue to use those Sub-Processors already engaged by Hedgewiz, as listed in Annex II, or to engage an additional or replace an existing Sub-Processors to process Customer Data, subject to the provision of a thirty (30) day prior notice of its intention to do so to the Customer. In case the Customer has not objected to the adding or replacing of a Sub-Processor within five (5) days of Hedgewiz’s notice, such Sub-Processor shall be considered approved by the Customer. In the event the Customer objects to the adding or replacing of a Sub-Processor, Hedgewiz may, under Hedgewiz’ sole discretion, suggest the engagement of a different Sub-Processor for the same course of services, or otherwise terminate the Agreement.
5.2. Hedgewiz shall, where it engages any Sub-Processor, impose, through a legally binding contract between Hedgewiz and the Sub-Processor, data protection obligations similar to those set out in this DPA. Hedgewiz shall ensure that such contract will require the Sub-Processor to provide sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of Data Protection Law.
5.3. Hedgewiz shall remain responsible to the Customer for the performance of the Sub-Processor’s obligations in accordance with this DPA. Hedgewiz shall notify the Customer of any failure by the Sub-Processor to fulfill its contractual obligations.
5.4. List of Sub-Processors is further detailed in Annex II.
6. TECHNICAL AND ORGANIZATIONAL MEASURES
6.1. 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, and without prejudice to any other security standards agreed upon by the parties, Hedgewiz hereby confirms that it has implemented and will maintain appropriate physical, technical and organizational measures to protect the Customer Data as required under Data Protection Laws to ensure lawful processing of Customer Data and safeguard Customer Data from unauthorized, unlawful or accidental processing, access, disclosure, loss, alteration or destruction. The parties acknowledge that security requirements are constantly changing and that effective security requires the frequent evaluation and regular improvement of outdated security measures.
6.2. The security measures includes (as a minimum):
a) Implementation of security-related policies and procedures, standards and practices designated for the protection of Personal Data;
b) Minimalization of Personal Data processing;
c) Use of encryption and pseudonymization where needed and possible;
d) Implementation of data protection measures by default and by design;
e) The use of proper firewalls and antivirus systems;
f) Managing organizational password policy which enforces complexity requirements;
g) Keeping backup and recovery capabilities;
h) The use of other state of the art technological and organizational controls mitigating data protection risks or any data breach or loss.
6.3. Hedgewiz shall review its security policies and operating procedures periodically and as required by any law, in order to keep it updated.
7. SECURITY INCIDENT
7.1. Hedgewiz will notify the Customer upon becoming aware of any confirmed Security Incident involving the Customer Data in Hedgewiz’ possession or control. Hedgewiz’s notification regarding or response to a Security Incident under this Section 7 shall not be construed as an acknowledgment by Hedgewiz of any fault or liability with respect to the Security Incident.
7.2. Hedgewiz will: (i) take necessary steps to remediate, minimize any effects of and investigate any Security Incident and to identify its cause; (ii) co-operate with the Customer and provide the Customer with such assistance and information as it may reasonably require in connection with the containment, investigation, remediation or mitigation of the Security Incident; (iii) notify the Customer in writing of any request, inspection, audit or investigation by a supervisory authority or other authority; (iv) keep the Customer informed of all material developments in connection with the Security Incident and execute a response plan to address the Security Incident; and (v) co-operate with the Customer and assist Customer with its obligation to notify the affected individuals in the case of a Security Incident.
8. AUDIT RIGHTS
8.1. Hedgewiz shall maintain accurate written records of any and all the processing activities of any Personal Data carried out under this DPA and shall make such records available to the Customer and applicable supervisory authorities upon written request. Such records provided shall be considered Hedgewiz’ Confidential Information and shall be subject to confidentiality obligations.
8.2. In the event the records and documentation provided subject to Section 8.1 above are not sufficient, Hedgewiz shall make available, solely upon prior reasonable written notice and no more than once per year, to a reputable auditor nominated by the Customer, information necessary to reasonably demonstrate compliance with this DPA, and shall allow for audits, including inspections, by such reputable auditor solely in relation to the Processing of the Customer Data (“Audit”) in accordance with the terms and conditions hereunder. The auditor shall be subject to the terms of this DPA and standard confidentiality obligations (including towards third parties). Hedgewiz may object to an auditor appointed by the Customer in the event Hedgewiz reasonably believes the auditor is not suitably qualified or independent, is a competitor of Hedgewiz or otherwise unsuitable (“Objection Notice”). The Customer will appoint a different auditor or conduct the Audit itself upon its receipt of an Objection Notice from Hedgewiz. Customer shall bear all expenses related to the Audit and shall (and ensure that each of its auditors shall) over the course of such Audit, avoid causing any damage, injury or disruption to Hedgewiz’ premises, equipment, personnel and business while its personnel are on those premises in the course of such Audit. Any and all conclusions of such Audit shall be confidential and reported back to Hedgewiz immediately.
9. CROSS BORDER PERSONAL DATA TRANSFERS
9.1. Where the GDPR, UK GDPR or the Swiss FADP is applicable, if the Processing of Personal Data by Hedgewiz (or by a Sub-Processor) includes transfer of Personal Data (either directly or through an onward transfer) to a third country outside the EEA, the UK and Switzerland that is not an Adequate Country, such transfer shall only occur if an appropriate safeguard approved by the applicable Data Protection Law (the GDPR (Article 46), UK GDPR (Article 46) or Swiss FADP (as applicable)) for the lawful transfer of Personal Data under is in place.
9.2. When Customer and Hedgewiz, or Hedgewiz and or its Sub-processor relies on the Standard Contractual Clauses to facilitate a transfer to a third country that is not an Adequate Country, then:
9.2.1. transfer of Personal Data from the EEA the terms set forth in Annex III shall apply.
9.2.2. transfer of Personal Data from the UK, the terms set forth in Annex IV shall apply; and
9.2.3. transfer of Personal Data from Switzerland, the terms set forth in Annex V shall apply.
10. TERM, TERMINATION AND CONFLICT
10.1. This DPA shall be effective as of the Effective Date (as defined in the agreement) and shall remain in force until the Agreement terminates.
10.2. Hedgewiz shall be entitled to terminate this DPA or terminate the Processing of Customer Data in the event that Processing of Customer Data under the Customer’s instructions or this DPA infringe applicable legal requirements.
10.3. Following the termination of this DPA, Hedgewiz shall, at the choice of the Customer, delete all Customer Data processed on behalf of the Customer and certify to the Customer that it has done so, or, return all Customer Data to the Customer and delete existing copies, unless applicable law or regulatory requirements requires that Hedgewiz continue to store Customer Data. Until the Customer Data is deleted or returned, the parties shall continue to ensure compliance with this DPA.
10.4. In the event of a conflict between the terms and conditions of this DPA and the Agreement, this DPA shall prevail. For the avoidance of doubt, in the event Standard Contractual Clauses have been executed between the parties, the terms of the Standard Contractual Clauses shall prevail over those of this DPA. Except as set forth herein, all of the terms and conditions of the Terms shall remain in full force and effect.
DETAILS OF PROCESSING
This Annex includes certain details of the Processing of Personal Data as required by Article 28(3) GDPR.
Categories of Data Subjects:
Customer employees, Customer’s customers, any data subject which are uploaded to the Service by Customer.
Categories of Personal Data processed:
Credentials, contact information (phone, address, email, etc.), Financial Data (Bank Account number, transactional and payments data), salary data where relevant, KYC/AML data (ID, passport, details regarding money origination, financial background, etc.).
Special Categories of Personal Data:
Nature of the processing:
Collection, storage, organization, communication, transfer, host and other uses in performance of the Services as set out in the Agreement.
Purpose(s) of Processing:
To provide the Service – allowing the execution of monetary transfers globally.
For as long as is necessary to provide the Service by Hedgewiz; provided there is no legal obligation to retain the Personal Data past termination or unless otherwise requested by the Customer.
LIST OF SUB-PROCESSORS
Name Address Description of the processing DPA/SCC Executed
Digital Ocean EU hosting and storage https://www.digitalocean.com/legal/data-processing-agreement
Amazon Web Services (AWS) EU/US hosting and storage https://d1.awsstatic.com/Processor_to_Processor_SCCs.pdf
Zoho EU/US CRM and customer support https://www.zoho.com/gdpr.html
Twilio EU/US Email delivery https://www.twilio.com/legal/data-protection-addendum
Message Bird EU/US Messaging system https://messagebird.com/legal/dpa
Inspectlet EU/US Customer Support and debugging https://docs.inspectlet.com/hc/en-us/articles/360004212092-Inspectlet-Data-Processing-Agreement-under-GDPR
EU INTERNATIONAL TRANSFERS AND SCC
1. The parties agree that the terms of the Standard Contractual Clauses are hereby incorporated by reference and shall apply to transfer of Personal Data from the EEA to other countries that are not deemed as Adequate Countries.
2. Module Two (Controller to Processor) of the Standard Contractual Clauses shall apply where the transfer is effectuated by Customer as the data controller of the Personal Data and Hedgewiz is the data processor of the Personal Data.
3. The Parties agree that for the purpose of transfer of Personal Data between Customer (as Data Exporter) and Hedgewiz (as Data Importer), the following shall apply:
a) Clause 7 of the Standard Contractual Clauses shall not be applicable.
b) In Clause 9, option 2 (general written authorization) shall apply and the method for appointing and time period for prior notice of Sub-processor changes shall be as set forth in the Sub-Processing Section of the DPA.
c) In Clause 11, the optional language will not apply, and data subjects shall not be able to lodge a complaint with an independent dispute resolution body.
d) In Clause 17, option 1 shall apply. The parties agree that the Standard Contractual Clauses shall be governed by the laws of the EU Member State in which the Customer is established (where applicable).
e) In Clause 18(b) the parties choose the courts of the Republic of Ireland, as their choice of forum and jurisdiction.
4. Annex I.A of the Standard Contractual Clauses shall be completed as follows:
4.a.1. “Data Exporter”: Customer
4.a.2. “Data Importer”: Hedgewiz
4.a.3. Roles: (A) With respect to Module Two: (i) Data Exporter is a data controller and (ii) the Data Importer is a data processor.
4.a.4. Data Exporter and Data Importer Contact details: As detailed in the Agreement.
4.a.5. Signature and Date: By entering into the Agreement and DPA, Data Exporter and Data Importer are deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
5. Annex I.B of the Standard Contractual Clauses shall be completed as follows:
a) The purpose of the processing, nature of the processing, categories of data subjects, categories of personal data and the parties’ intention with respect to the transfer of special categories are as described in Annex I (Details of Processing) of this DPA.
b) The frequency of the transfer and the retention period of the personal data is as described in Annex I (Details of Processing) of this DPA.
c) The sub-processor which personal data is transferred are listed in Annex II.
6. Annex I.C of the Standard Contractual Clauses shall be completed as follows: the competent supervisory authority in accordance with Clause 13 is the supervisory authority in the Member State stipulated in Section 3 above.
7. The Technical and Organizational Measures detailed in the Agreement serves as Annex II of the Standard Contractual Clauses.
8. Annex II of this DPA (List of Sub-processors) serves as Annex III of the Standard Contractual Clauses.
UK INTERNATIONAL TRANSFERS AND SCC
1. The parties agree that the terms of the Standard Contractual Clauses as amended by the UK Standard Contractual Clauses, and as amended in this Annex IV, are hereby incorporated by reference and shall apply to transfer of Personal Data from the UK to other countries that are not deemed as Adequate Countries.
2. This Annex IV is intended to provide appropriate safeguards for the purposes of transfers of Personal Data to a third country in reliance on Article 46 of the UK GDPR and with respect to data transfers from controllers to processors or from the processor to its sub-processors.
3. Terms used in this Annex IV that are defined in the Standard Contractual Clauses, shall have the same meaning as in the Standard Contractual Clauses.
4. This Annex IV shall (i) be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfils the intention for it to provide the appropriate safeguards as required by Article 46 of the UK GDPR, and (ii) not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
5. Amendments to the UK Standard Contractual Clauses:
5.1. Part 1: Tables
5.1.1. Table 1 Parties: shall be completed as set forth in Section 4 within Annex III above.
5.1.2. Table 2 Selected SCCs, Modules and Selected Clauses: shall be completed as set forth in Section 2 and 3 within Annex III above.
5.1.3. Table 3 Appendix Information:
Annex 1A: List of Parties: shall be completed as set forth in Section 2 within Annex III above.
Annex 1B: Description of Transfer: shall be completed as set forth in Annex I above.
Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: shall be completed as set forth in the Agreement above.
Annex III: List of Sub processors: shall be completed as set forth in Annex II above.
5.1.4. Table 4 ending this Addendum when the Approved Addendum Changes: shall be completed as “neither party”.
SUPPLEMENTARY TERMS FOR SWISS DATA PROTECTION LAW TRANSFERS ONLY
The following terms supplement the Clauses only if and to the extent the Clauses apply with respect to data transfers subject to Swiss Data Protection Law, and specifically the FDPA:
• The term ’Member State’ will be interpreted in such a way as to allow data subjects in Switzerland to exercise their rights under the Clauses in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the Clauses.
• The clauses in the DPA protect the Personal Data of legal entities until the entry into force of the Revised Swiss FDPA.
• All references in this DPA to the GDPR should be understood as references to the FDPA insofar as the data transfers are subject to the FDPA.
• References to the “competent supervisory authority”, “competent courts” and “governing law” shall be interpreted as Swiss Data Protection Laws and Swiss Information Commissioner, the competent courts in Switzerland, and the laws of Switzerland (for Restricted Transfers from Switzerland).
• In respect of data transfers governed by Swiss Data Protection Laws and Regulations, the EU SCCs will also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as Personal Data under Swiss Data Protection Laws and Regulations until such laws are amended to no longer apply to a legal entity.
• The competent supervisory authority is the Swiss Federal Data Protection Information Commissioner.