This Data Processing Agreement (the “Agreement”) will become effective as of the date on which the following parties have fully executed the Principal Agreement (defined below):
BACKGROUND
(A) Mastercard and Customer have entered into a written services agreement, an Order, an enrollment form, or any other relevant agreement (the “Principal Agreement”) which involves the Processing of Personal Data of individuals subject to Privacy and Data Protection Law.
(B) The Parties have agreed to enter into this data processing agreement to govern such Processing of Personal Data.
AGREED TERMS
1. Definitions and interpretation.
Capitalized terms not otherwise defined herein have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement remain in full force and effect.
The following terms have the meanings set out below for this Agreement:
1.1. “Affiliate” means in relation to a Party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with that Party from time to time. “Control”, for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Business Purpose” (or “Purpose”) means the use of Personal Data for Mastercard or Customer’s operational purposes, or other notified purposes, provided that the use of Personal Data is reasonably necessary and proportionate to achieve the operational purpose for which the Personal Data was collected or processed or for another operational purpose that is compatible with the context in which the Personal Data was collected.
1.3. “Customer Data” means the information submitted to Mastercard by Customer via the Services.
1.4. “Customer Personal Information” means Personal Data or Personal Information provided by Customer to Mastercard to provide services to Customer.
1.5. “Data Protection Rights” means all rights granted to individuals under Privacy and Data Protection Law, which may include – depending on applicable law – the right to know, the right of access, rectification, erasure, complaint, data portability, restriction of Processing, objection to the Processing, and rights relating to automated decision-making and indemnification against misuse of Personal Data.
1.6. “Data Subject” means an identified or identifiable natural person whose Personal Data is Processed in the context of the Principal Agreement. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier, such as name, an identification number, location data, an online identifier, or to one or more factors specific to his physical, physiological, genetic, mental, economic, cultural or social identity.
1.7. “EU Data Protection Law” means all of the following, each as amended and replaced from time to time: the EU General Data Protection Regulation 2016/679 (“EU GDPR”) and the e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC) and their respective national implementing legislations; the Swiss Federal Data Protection Act; the Monaco Data Protection Act; the UK Data Protection Act 2018 and UK GDPR (together “UK Data Protection Law”); and the Data Protection Acts of the European Economic Area (“EEA”) countries; each as applicable.
1.8. “Mastercard Data” means information that Mastercard provides or otherwise makes available to Customer through the Services or pursuant to an Order. Mastercard Data includes but is not limited to information from publicly available sources, third-party data providers, and Metadata.
1.9. “Metadata” means pseudonymized data that Mastercard derives or generates from its analysis of Customer Data. Examples of Metadata include the number of times a data element has been queried in a period of time (velocity) or the last time a data element has been seen (recency). Metadata does not constitute Customer Data.
1.10. “Order” means a document or online order entered into between Customer and Mastercard, or any of their Affiliates, that specifies the Services to be provided by Mastercard. By entering into an Order, an Affiliate of Customer agrees to be bound by the terms of this Agreement as if it were an original party.
1.11. “Personal Data” (or “Personal Information”) means any information relating to an identified or identifiable individual, including but not limited to contact information, demographic information, passport number, Social Security number or other national identification number, bank account information, Primary Account Number and authentication information (e.g., identification codes, passwords).
1.12. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, access to, or other unauthorized Processing of Personal Data transmitted, stored or otherwise Processed.
1.13. “Privacy and Data Protection Law” means any law, statute, declaration, decree, legislation, enactment, order, ordinance, regulation or rule (as amended and replaced from time to time) which relates to the protection of individuals with regards to the Processing of Personal Data to which the Parties are subject, including but not limited to EU Data Protection Law; the State Privacy Laws; the U.S. Gramm-Leach-Bliley Act; the Brazil General Data Protection Act; the Argentina Personal Data Protection Act 25.326 (PDPA); the South Africa Protection of Personal Information Act; laws regulating unsolicited email, telephone, and text message communications; security breach notification laws; laws imposing minimum security requirements; laws requiring the secure disposal of records containing certain Personal Data; laws governing the portability and/or cross-border transfer of Personal Data; and all other similar international, federal, state, provincial, and local requirements; each as applicable.
1.14. “Processing of Personal Data” (or “Processing/Process”) means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, including any operation defined as “Processing” under applicable Privacy and Data Protection Law.
1.15. “Sensitive Data” means any Personal Data considered to be sensitive according to applicable Privacy and Data Protection Law and may include data revealing racial or ethnic origin, political opinions, cult, religious or philosophical beliefs, or trade union membership, criminal records, genetic data, biometric data, data concerning health or data concerning a natural person's sex life or sexual orientation.
1.16. “Services” are Mastercard’s suite of global identity verification products and fraud detection services provided to Customer under an Order, or pursuant to a free trial, as further defined in the Principal Agreement. Services exclude Mastercard Data.
1.17. “State Privacy Laws” means, collectively, all U.S. state privacy laws and their implementing regulations, as amended or superseded from time to time, that apply generally to the processing of individuals' Personal Data and that do not apply solely to specific industry sectors (e.g., financial institutions), specific demographics (e.g., children), or specific classes of information (e.g., health or biometric information). State Privacy Laws include the following:
1.17.1. California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (California Civil Code §§ 1798.100 to 1798.199) (“CPRA”);
1.17.2. Colorado Privacy Act (Colorado Rev. Stat. §§ 6-1-1301 to 6-1-1313) (“ColoPA”);
1.17.3. Connecticut Personal Data Privacy and Online Monitoring Act (Public Act No. 22-15) (“CPOMA”);
1.17.4. Utah Consumer Privacy Act (Utah Code Ann. §§ 13-61-101 to 13-61-404) (“UCPA”);
1.17.5. Virginia Consumer Data Protection Act (Virginia Code Ann. §§ 59.1-575 to 59.1-585) (“VCDPA”).
1.18. “User” means an individual who is authorized by Customer to access or use the Services, and who has been provided a user id and password, or other account credential. For example, Users may include employees, contractors, and agents of Customer.
2. Scope and Applicability
2.1. This Agreement regulates the Processing of Personal Data subject to Privacy and Data Protection Law for the Services provided in the Principal Agreement.
2.2. In addition, to the extent the Principal Agreement involves the Processing of Personal Data of individuals subject to EU Data Protection Law, the Parties have agreed to the terms set forth in Annex 2 of the Agreement for the purpose of complying with EU Data Protection Law (the “EU Addendum”). To the extent Mastercard Processes Customer Personal Information to provide the Services to Customer, Mastercard and Customer will comply with their respective obligations pursuant to the terms set forth in Annex 3 of the Agreement (the “US Addendum”).
2.3. In the event of a conflict between the terms of the Principal Agreement and this Agreement, the terms of this Agreement will control to the extent of such conflict. In the event of a conflict between the terms of this Agreement and the Value-Added Services Rules, the terms of this Agreement will apply.
2.4. The Parties will comply with their respective obligations as laid down in this Agreement, without regard to the residency or location (permanent or otherwise) of any individual to whom any Personal Data relates, the location of a Party’s operations, the extent to which it has targeted particular geographic regions or jurisdictions, or any other factors.
3. Compliance with Privacy and Data Protection Law. Both Parties represent and warrant that they will comply with Privacy and Data Protection Law when Processing Personal Data in the context of the Services, and that they will perform their obligations under this Agreement in compliance with Privacy and Data Protection Law.
4. Roles of the Parties. The Parties acknowledge and confirm that each Party is responsible for the Processing of Personal Data for its own Business Purposes in the context of the Services specified in the Principal Agreement, as described below:
4.1. Mastercard Processes Personal Data for the following Business Purposes: operating, providing, supporting or enabling the Services to Customer and other third parties, including by pseudonymizing Customer Data and creating Mastercard’s databases, and for enabling payments, finance and account management, data analysis, benchmarking, technical and customer support, fraud detection and prevention and product development, and for ensuring compliance with applicable laws (“Mastercard Purposes”).
4.2. Customer Processes Personal Data for the following Business Purposes: collecting and sharing Customer Data with Mastercard; receiving and using Metadata in the context of the Services; and taking any fraud countermeasures based on Metadata (“Customer Purposes”).
5. Obligations of the Parties. Without prejudice to Section 6 of this Agreement, each Party represents and warrants that, in relation to the Processing of Personal Data for its own Business Purposes in the context of the Services, it will:
5.1. provide appropriate notice to and/or seek consent from individuals as required under Privacy and Data Protection Law (Notice and Consent).
5.2. ensure that, for any transfers of Personal Data in the context of the Services, the Personal Data will be protected with the same level of protection as provided by this Agreement and it will implement any data transfer mechanism as required under Privacy and Data Protection Law. (Transfers).
5.3. cooperate with the other Party in good faith to fulfil their respective data protection compliance obligations under Privacy and Data Protection Law, including complying with individuals’ requests to exercise their Data Protection Rights and replying to investigations and inquiries from regulators as required under Privacy and Data Protection Law (Cooperation and Assistance).
5.4. be responsible for compliance with this Agreement and for the compliance of their respective Affiliates and Users. (Compliance).
5.5. conduct and review any relevant assessments (including security or privacy impact assessments) as may be required by applicable Privacy and Data Protection Laws for purposes of implementing the Services, and any cross-border transfers of Personal Data. (Assessments).
6. Customer’s Obligations.
6.1. Generally. Customer will use best efforts to prevent unauthorized access to or Processing of Metadata and will notify Mastercard without undue delay of any such unauthorized access, or Processing. Customer will use the Services and Metadata only to the extent permitted by the Principal Agreement. Customer is solely responsible for ensuring that its use of the Services and Metadata, including Customer’s provision of Customer Data to Mastercard as contemplated in the Principal Agreement or this Agreement, does not violate any laws, in particular any applicable Privacy and Data Protection Laws. Any use of the Services in breach of this Agreement by Customer, its Affiliates, or any Users, may result in Mastercard’s immediate suspension of the Services.
6.2. Data Subject Rights. Customer must develop and implement appropriate procedures for handling requests by Data Subjects to exercise their rights to information, access, rectification, erasure, restriction, portability, objection (including to not be subjected to automated individual decision-making or profiling), and any other rights Data Subjects have to their Personal Data under Privacy and Data Protection Law, with regard to Personal Data Processed in connection with this Agreement (“Data Subject Requests”). Customer will be solely responsible for handling Data Subject Requests on its behalf.
6.3. Customer’s Privacy Policy. Irrespective of Section 5 of this Agreement, Customer will not collect or provide or make available to Mastercard any Customer Data that is not collected or stored in accordance with applicable law and Customer’s privacy policy (or the privacy policy of Customer’s customers, if applicable).
6.3.1. Customer represents and warrants that Customer will provide Data Subjects with all notices and obtain from them all rights and consents necessary for the provision and transfer of such data to Mastercard, the Processing of such data by or on behalf of Mastercard, and Customer’s use of Metadata pursuant to this Agreement. As between Customer and Mastercard, Customer is solely responsible for providing such notice and obtaining such consent.
6.3.2. Customer also confirms and warrants that it will inform Data Subjects in particular of the transfer and storage by Mastercard of their Personal Data outside the country in which it was collected (e.g., transfer to and storage in the United States), the ways in which their Personal Data will be Processed by Customer and Mastercard, and any other information required by applicable Privacy and Data Protection Laws. Customer will ensure that Customer’s privacy policy is readily accessible to anyone from or about whom Customer collects data and, if required by applicable law, Customer will provide those Data Subjects with the ability to exercise rights applicable to their Personal Data under applicable Privacy and Data Protection Laws, such as opting out of disclosure of their Personal Data by Customer.
6.4. Data Integrity. Customer is exclusively responsible for the accuracy, completeness, relevance and integrity of all Personal Data provided to Mastercard.
6.5. No Automated Decision-Making. Customer hereby represents and warrants that it will ensure compliance with requirements under applicable Privacy and Data Protection Law should Customer use the Services to make any automated decisions that produce legal effects concerning Data Subjects or similarly significantly affect Data Subjects, in particular by ensuring a valid legal ground for the decision-making, including obtaining Data Subjects’ consent, if appropriate, and implementing appropriate safeguards, including providing Data Subjects with the right to obtain human intervention in the decision-making process. Between Mastercard and Customer, Customer will be solely responsible for compliance with this Section 6.4.
7. Transfers. Customer acknowledges and agrees that all data including Personal Data Processed in connection with this Agreement will be transferred and stored outside the country in which such Personal Data was collected (e.g., transfer to and storage in the United States), and Customer represents and warrants that it has all necessary consents, authorizations, permissions and/or approvals for such transfer, storage and Processing of all data including Personal Data to a location outside the country in which such Personal Data was collected (including in particular, to the United States), in accordance with applicable Privacy and Data Protection Law.
8. Security of the Processing, Confidentiality, and Personal Data Breach Notification. The Parties agree and warrant that:
8.1. they have implemented and maintain a comprehensive written information security program that complies with Privacy and Data Protection Law and Annex 1 of this Agreement, including appropriate technical, operational and organizational measures to protect from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, access to, or otherwise unauthorized Processing of Personal Data transmitted, stored or otherwise Processed (Information Security Program). A Party’s Information Security Program shall comply with the applicable Payment Card Industry Data Security Standards to the extent that Party Processes payment card information.
8.2. they have taken steps to ensure that any person or entity acting under its authority, who Processes or in any way has access to Personal Data in the context of the Services (including any entity engaged by a Party or any further sub-contractor) is only granted access to Personal Data on a need-to-know basis and is subject to a duly enforceable contractual or statutory confidentiality obligation (Confidentiality).
8.3. Each Party must notify the other Party of a Personal Data Breach that relates to Personal Data Processed in the context of the Service and for which the other Party is a Controller, without undue delay, and not later than forty-eight (48) hours after having become aware of a Personal Data Breach. The Parties will assist each other in complying with their obligations to notify a Personal Data Breach.
9. Notification Obligations. Each Party agree and warrant that it will:
9.1. immediately inform the other Party, in writing, of any request, question, objection, complaint, investigation or any other inquiry, received from any individual, regulator or public authority of whatever jurisdiction, that relates to Personal Data Processed in the context of the Services, unless otherwise restricted by applicable law. Each Party will provide the other Party with a copy of any such requests within 48 (forty-eight) hours of receipt (i) for Mastercard, by email to TPRM@mastercard.com and SOC@mastercard.com; (ii) for Customer, by email to the email provided by Customer in the relevant Notice section of the Principal Agreement and will respond to such requests only in accordance with the other Party’s prior written authorization, unless otherwise prohibited by applicable law (Notification Obligations). For clarity, this Section 9.1 does not apply to the fulfillment of Data Subject Rights requests submitted by Data Subjects to either Party in their roles as Controller under EU Data Protection Law as further defined in Annex 2, Section 3.6.
9.2. implements appropriate administrative, technical, operational and organizational measures to ensure, and to be able to demonstrate, that the Processing of Personal Data is performed in accordance with this Agreement and applicable Privacy and Data Protection Law (Accountability).
10. Data Disclosures. The Parties represent and warrant that they will only disclose Personal Data to a third party in accordance with Privacy and Data Protection Law and with this Agreement and Principal Agreement and will require such third party in writing to comply with Privacy and Data Protection Law and with the same obligations as are imposed on each Party by this Agreement, as appropriate and relevant, unless it is not possible to do so, such as where the data recipient is a governmental authority.
11. Liability.
11.1. Each Party agrees that, in relation to the Processing of Personal Data for its own Purposes, it is fully liable towards individuals for the entire damages resulting from a violation of Privacy and Data Protection Law or of this Agreement.
11.2. The Parties agree that if Mastercard has paid compensation, damages or fines, Mastercard is entitled to claim back from Customer that part of the compensation, damages or fines, corresponding to Customer’s part of responsibility for the compensation, damages or fines.
12. Applicable Law and Jurisdiction. The Processing of Personal Data under this Agreement is governed by the law applicable to the Principal Agreement. Any disputes between the Parties relating to the Processing of Personal Data under this Agreement will be subject to the exclusive jurisdiction of the courts in the Principal Agreement.
13. Modification of this Agreement. This Agreement may only be modified by a written amendment signed by each of the Parties.
14. Termination. The Parties agree that this Agreement is terminated upon the termination of the Principal Agreement pursuant to which Customer obtained Personal Data from Mastercard.
15. Invalidity and Severability. If any provision of this Agreement is found by any court or administrative body of a competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect any other provision of this Agreement and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.
16. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed will constitute a duplicate original, but all the counterparts will together constitute the one agreement.
The Parties will, as a minimum, implement the following types of security measures:
Technical and organizational measures to prevent unauthorized persons from gaining access to the data processing systems available in premises and facilities (including databases, application servers and related hardware), where Personal Data are processed, include:
Technical and organizational measures to prevent data processing systems from being used by unauthorized persons include:
Technical and organizational measures to ensure that persons entitled to use a data processing system gain access only to such Personal Data in accordance with their access rights, and that Personal Data cannot be read, copied, modified or deleted without authorization, include:
Technical and organizational measures to ensure that Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities Personal Data are disclosed, include:
Technical and organizational measures to monitor whether data have been entered, changed or removed (deleted), and by whom, from data processing systems, include:
Technical and organizational measures to ensure that Personal Data are processed solely in accordance with the Instructions of the Controller include:
Technical and organizational measures to ensure that Personal Data are protected against accidental destruction or loss (physical/logical) include:
Technical and organizational measures to ensure that Personal Data collected for different purposes can be processed separately include:
Customer, Mastercard, and Mastercard Europe agree that the terms and conditions set out below are added as a European Data Processing Addendum (“EU Addendum”) to, and form an integral part of, the Agreement to which it is attached. This EU Addendum regulates the Processing of Personal Data of Data Subjects subject to EU Data Protection Law.
In the event of a conflict between the terms of this EU Addendum and the Agreement with respect to the subject matter of this EU Addendum, the terms of this EU Addendum will control to the extent of such conflict.
Capitalized terms not otherwise defined herein have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement remain in full force and effect.
The following terms have the meanings set out below for this EU Addendum:
1.1. The terms “Binding Corporate Rules”, “Controller,” “Data Subject,” “Personal Data”, “Personal Data Breach”, “Processing/Process of Personal Data,” “Processor”, and “Supervisory Authority” shall have the meanings given to them under EU Data Protection Law.
1.2. “Europe” means the European Economic Area, Switzerland, Monaco and the United Kingdom.
1.3. “EEA Mastercard Binding Corporate Rules” (or “EEA Mastercard BCRs”) means the Mastercard Binding Corporate Rules as approved by the EEA data protection authorities and available at https://www.mastercard.us/content/dam/mccom/en-us/documents/mastercard-bcrs-february-2017.pdf.
1.4. “UK Mastercard Binding Corporate Rules” (or “UK Mastercard BCRs”) means the Mastercard Binding Corporate Rules as approved by the UK data protection authority and available at https://www.mastercard.us/content/dam/mccom/en-us/documents/mastercard-bcrs-february-2017.pdf.
For the purpose of the Principal Agreement and the Agreement, the Parties acknowledge and confirm that each Party is a Controller for the Processing of Personal Data for its own Purposes (as specified in Section 4 of the Agreement) in the context of the Services. The Parties further confirm that neither Party acts as a Processor on behalf of the other Party; that each Party is an independent Controller; and that the Agreement does not create a joint-Controllership or a Controller-Processor relationship between the Parties.
Without prejudice to Section 6 of the Agreement, each Party represents and warrants that, in relation to the Processing of Personal Data for its own Purposes in the context of the Services, it acts as a Controller and that it:
3.1. is responsible for compliance with EU Data Protection Law in relation to the Processing of Personal Data for which it is a Controller.
3.2. complies with EU Data Protection Law in respect of Processing of Personal Data (Lawfulness of processing);
3.3. relies on a valid legal ground under EU Data Protection Law for each of its own Purposes, including obtaining Data Subjects’ appropriate consent if required or appropriate under EU Data Protection Law (Legal ground);
3.4. takes reasonable steps to ensure that Personal Data is accurate, complete and current; adequate, relevant and limited to what is necessary in relation to the Purposes for which they are processed; and kept in a form which permits identification of Data Subjects for no longer than is necessary for the Purposes for which the Personal Data are processed unless a longer retention is required or allowed under applicable law (Accuracy, data minimization, and data retention);
3.5. will implement and maintain an Information Security Program as outlined in Section 8 of the Agreement and as further required or appropriate under EU Data Protection Law. In assessing the appropriate level of security, the Parties will take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing of Personal Data as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects and the risks that are presented by the Processing of Personal Data, in particular the risk of Personal Data Breaches. (Accountability);
3.6. provides appropriate notice to the Data Subjects regarding (1) the Processing of Personal Data, including for the Processing for Mastercard Purposes, in a timely manner and at the minimum with the elements required under EU Data Protection Law, and (2) as appropriate, Data Transfers and the existence of the Mastercard BCRs, including the Data Subjects’ right to enforce Mastercard BCRs as third-party beneficiaries. (Notice);
3.7. responds to Data Subject requests to exercise their any rights granted to individuals under EU Data Protection law, including but not limited to the right of (a) access, (b) rectification, (c) erasure, (d) data portability, (e) restriction of Processing, and (f) objection to the Processing in accordance with EU Data Protection Law (Data Subjects’ Rights);
3.8. cooperates with the other Party to fulfil their respective data protection compliance obligations under EU Data Protection Law (Cooperation);
3.9. conduct and review any relevant assessments (including security or privacy impact assessments) as may be required by EU Data Protection Law for purposes of implementing the Services, and any cross-border transfers of Personal Data. (Assessments); and
3.10. ensures compliance with any applicable requirements under EU Data Protection Law if it engages in automated decision-making or profiling in the context of the Services. (Automated Decision-Making Compliance).
4.1. Customer may transfer the Personal Data Processed in connection with the Services outside of Europe in accordance with EU Data Protection Law, provided that the Personal Data are transferred to a country which provides an adequate level of protection under EU Data Protection Law or to a recipient which has implemented adequate safeguards under EU Data Protection Law such as approved Binding Corporate Rules or standard contractual clauses.
4.2. Mastercard may transfer the Personal Data Processed in connection with the Services outside of the European Economic Area, Switzerland, Monaco in accordance with the EEA Mastercard BCRs and outside of the UK in accordance with the UK Mastercard BCRs or with any other lawful data transfer mechanism that provides an adequate level of protection under EU Data Protection Law. Mastercard represents and warrants that it will abide by the EEA or the UK Mastercard BCRs when Processing Personal Data for its own Purposes in the context of the Services.
4.3. If either Party’s compliance with EU Data Protection Law applicable to transfers of Personal Data is affected by circumstances outside of either Party’s control, including if a legal instrument for transfers is invalidated, amended, or replaced, then the Parties will work together in good faith to reasonably resolve such non-compliance.
4.4. Notwithstanding anything to the contrary in the Agreement, Customer shall promptly and no later than 48 hours from becoming aware inform Mastercard in writing to euprivacy@Mastercard.com, with the subject line “Data Processing Agreement Notification”, if (1) it has reason to believe that it is or has become subject to laws or practices that prevent the Customer from fulfilling its obligations under this EU Addendum. Customer shall provide the description of the non-compliance and the reasons for the non-compliance, and its impact or likely impact on Mastercard or Mastercard’s customers.
The Parties represent and warrant that they will only disclose Personal Data Processed to a third party in the context of the Services in accordance with EU Data Protection Law and will require such third party in writing to comply with EU Data Protection Law as well as the same obligations as are imposed by this EU Addendum, as appropriate and relevant, unless it is not possible to do so, such as where the data recipient is a governmental authority. Customer will not disclose any Metadata to third parties.
6.1. The Parties must implement and maintain a comprehensive written information security program with appropriate technical and organizational measures to ensure a level of security appropriate to the risk, and as appropriate: (a) the pseudonymization and encryption of Personal Data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing. In assessing the appropriate level of security, the Parties must take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing of Personal Data as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects and the risks that are presented by the Processing of Personal Data, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.
6.2. The Parties must take steps to ensure that any person acting under their authority who has access to Personal Data is subject to a duly enforceable contractual or statutory confidentiality obligation, and if applicable Process Personal Data in accordance with the Controller’s instructions.
6.3. Each Party must notify the other Party of a Personal Data Breach that relates to Personal Data Processed in the context of the Service and for which the other Party is a Controller, without undue delay, and not later than forty-eight (48) hours after having become aware of a Personal Data Breach. The Parties will assist each other in complying with their obligations to notify a Personal Data Breach. The Party which becomes aware of a Personal Data Breach will notify, without undue delay and, where feasible, not later than 72 hours after having become aware of it, the competent Supervisory Authority, where required by EU Data Protection Law. When the Personal Data Breach is likely to result in a high risk to the rights and freedoms of Data Subjects or upon the competent Supervisory Authority’s request to do so, such Party must communicate the Personal Data Breach to the Data Subject without undue delay, where required by EU Data Protection Law.
6.4. The Parties will use their best efforts to reach an agreement on whether and how to notify persons or entities of a Personal Data Breach, and must document all Personal Data Breaches, including the facts relating to the Personal Data Breach, its effects and the remedial action taken.
Each Party commits to conduct audits on a regular basis to control compliance with EU Data Protection Law, including the security measures provided in Section 6 of this EU Addendum and Annex 1 of the Agreement. Upon prior written request, each Party agrees to cooperate and within reasonable time provide the requesting Party with: (a) a summary of the audit reports demonstrating its compliance with EU Data Protection Law obligations and the Agreement; and (b) confirmation that the audit has not revealed any material vulnerability, or to the extent that any such vulnerability was detected, that such vulnerability has been fully remedied.
Subject to the limitation of liability clauses in the Agreement, each Party agrees that it will be held liable towards Data Subjects for the entire damage resulting from a violation of EU Data Protection Law for its own Purposes as specified in Section 4 of the Agreement. Where the Parties are involved in the same Processing and where they are responsible for any damage caused by the Processing of Personal Data, both Customer and Mastercard may be held liable for the entire damage in order to ensure effective compensation of the Data Subject. If Mastercard paid full compensation for the damage suffered, it is entitled to claim back from Customer that part of the compensation corresponding to Customer’s part of responsibility for the damage.
The Parties agree that this EU Addendum and the Processing of Personal Data subject to: (1) EU Data Protection Law (excluding UK Data Protection Law for the purpose of this provision) will be governed by the law of Belgium and that any dispute will be submitted to the Courts of Brussels; (2) UK Data Protection Law will be governed by UK law and will be submitted to the Courts of England and Wales.
This U.S. State Privacy Law Data Processing Addendum (the “U.S. Addendum”) forms part of the Agreement to which it is attached (the Agreement”). This U.S. Addendum regulates the Processing of Personal Data of Consumers subject to the State Privacy Laws (as defined below). In the event of a conflict between the terms of this U.S. Addendum and the Agreement with respect to the subject matter of this U.S. Addendum, the terms of this U.S. Addendum will control to the extent of such conflict.
NOW, THEREFORE, the Parties agree as follows:
A. This U.S. Addendum regulates the Processing of Personal Data subject to State Privacy Laws for the services provided in the Agreement.
B. Mastercard and Customer enter into this U.S. Addendum on behalf of itself and on behalf of its Affiliates, where such Affiliate is a party to the Agreement and/or a statement of work (“SOW”) which is governed by the Agreement. For the purposes of this U.S. Addendum only and, except where indicated otherwise, the terms "Mastercard" and “Customer” include their respective Affiliate who is a party to a Agreement and/or a SOW which is governed by the Agreement.
C. The Parties agree that the terms in this U.S. Addendum supersede and replace any existing privacy and data protection terms previously concluded between the Parties with respect to the processing of Personal Data of Consumers subject to the State Privacy Laws.
D. The terms used in this U.S. Addendum have the meaning set forth in Section 1. Except as modified below, the terms of the Agreement remain in full force and effect. Exhibit 1 forms an integral part of this U.S. Addendum.
Capitalized terms not otherwise defined herein have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement remain in full force and effect. The following terms have the meanings set out below for this U.S. Addendum:
1.1. “Consumer” has the meaning defined in the State Privacy Laws.
1.2. “Controller” means “Controller” or “Business” as those terms are defined in the State Privacy Laws.
1.3. “Customer Personal Data” means Personal Data provided by Customer to, or which is collected on behalf of Customer by, Mastercard to provide services to Customer pursuant to the Agreement.
1.4. “Mastercard Personal Data” means the Personal Data of California residents subject to the CPRA that is Sold to Customers by Mastercard to provide services to Customer pursuant to the Agreement.
1.5. “Personal Data” means “Personal Data” or “Personal Information” as those terms are defined in the State Privacy Laws.
1.6. “Processing,” “Process,” and “Processed” have the meaning defined in the State Privacy Laws.
1.7. “Processor” means “Processor,” “Service Provider,” or “Contractor” as those terms are defined in the State Privacy Laws.
1.8. “Share,” “Shared,” and “Sharing” have the meaning defined in the CPRA.
1.9. “Sale,” “Selling,” and “Sold” have the meaning defined in the State Privacy Laws.
1.10. “State Privacy Laws” means, collectively, all U.S. state privacy laws and their implementing regulations, as amended or superseded from time to time, that apply generally to the processing of individuals' Personal Data and that do not apply solely to specific industry sectors (e.g., financial institutions), specific demographics (e.g., children), or specific classes of information (e.g., health or biometric information). State Privacy Laws include the following:
1.10.1. California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (California Civil Code §§ 1798.100 to 1798.199) (“CPRA”);
1.10.2. Colorado Privacy Act (Colorado Rev. Stat. §§ 6-1-1301 to 6-1-1313) (“ColoPA”);
1.10.3. Connecticut Personal Data Privacy and Online Monitoring Act (Public Act No. 22-15) (“CPOMA”);
1.10.4. Utah Consumer Privacy Act (Utah Code Ann. §§ 13-61-101 to 13-61-404) (“UCPA”);
1.10.5. Virginia Consumer Data Protection Act (Virginia Code Ann. §§ 59.1-575 to 59.1-585) (“VCDPA”).
1.11. “Third Party” has the meaning defined in the CPRA.
1.12. In the event of a conflict in the meanings of defined terms in the State Privacy Laws, the meaning from the law applicable to the state of residence of the relevant Consumer applies.
2.1. Applicability. This U.S. Addendum applies only to: Mastercard’s Processing of Customer Personal Data for the nature, purposes, and duration set forth in Exhibit 1a; and Mastercard’s Sale of Mastercard Personal Data to Customer for the purposes set forth in Exhibit 1b.
2.2. Roles of the Parties. For the purposes of the Agreement and this U.S. Addendum:
2.2.1. Customer Personal Data. Customer is the Party responsible for determining the purposes and means of Processing Customer Personal Data as the Controller and appoints Mastercard as a Processor to Process Customer Personal Data as set forth in Exhibit 1a. For the avoidance of doubt, Mastercard’s collection, retention, use, combination, disclosure, sale, or other Processing of Personal Data for its own purposes independent of Customer’s use of the Services specified in the Agreement are outside the scope of this U.S. Addendum; and
2.2.2. Mastercard Personal Data. Mastercard is the Party responsible for determining the purposes and means of Processing Mastercard Personal Data as the Controller and Customer is the Third Party to whom Mastercard Personal Data is Sold for the limited and specific purposes set forth in Exhibit 1b and pursuant to the obligations set forth in Section 6.
2.3. Obligations at Termination Upon termination of the Agreement except as set forth therein or herein, where required by State Privacy Laws, Mastercard will discontinue Processing and delete Customer Personal Data in its possession without undue delay and shall direct its subcontractors and sub-processors to do the same. Mastercard may retain Customer Personal Data to the extent required by law but only to the extent and for such period as required by such law and always provided that Mastercard shall ensure the confidentiality of all such Customer Personal Data.
3.1. Compliance with Obligations. Mastercard, its employees, and agents, with respect to the Processing of Customer Personal Data, (a) shall comply with the obligations of the State Privacy Laws, (b) shall provide the level of privacy protection required by the State Privacy Laws, (c) shall provide Customer with all reasonably-requested assistance to enable Customer to fulfill its own obligations under the State Privacy Laws, and (d) understand and shall comply with this U.S. Addendum. Upon the reasonable request of Customer, Mastercard shall make available to Customer all information in Mastercard’s possession necessary to demonstrate Mastercard’s compliance with this subsection.
3.2. Compliance Assurance. Customer has the right to take reasonable and appropriate steps to ensure that Mastercard uses Customer Personal Data consistent with Customer’s obligations under applicable State Privacy Laws.
3.3. Compliance Monitoring>. With respect to the Processing of Customer Personal Data, Mastercard shall, with Customer’s consent, arrange for a qualified and independent assessor to conduct an assessment, at least annually and at Mastercard's expense, of Mastercard’s policies and technical and organizational measures in support of the obligations under this U.S. Addendum using an appropriate and accepted control standard or framework and assessment procedure for such assessments. Mastercard shall provide a report of such assessment to Customer upon request.
3.4. Compliance Remediation. Mastercard shall promptly notify Customer if it determines that it can no longer meet its obligations under applicable State Privacy Laws with respect to Mastercard’s Processing of Customer Personal Data. Upon receiving notice from Mastercard in accordance with this subsection, Customer may direct Mastercard to take reasonable and appropriate steps to stop and remediate unauthorized use of Customer Personal Data.
3.5. Security. The Parties shall implement and maintain no less than commercially reasonable security procedures and practices, appropriate to the nature of the information, to protect Customer Personal Data and Mastercard Personal Data from unauthorized access, destruction, use, modification, or disclosure. See Annex 1 of the Agreement for additional details.
4.1. Mastercard will collect, use, retain, combine, disclose, and otherwise Process Customer Personal Data (i) to perform the services specified in Exhibit 1a, including in support of its internal operations and to identify and protect against fraudulent or illegal activity; (ii) as set forth in this U.S. Addendum; (iii) to comply with legal or contractual obligations; and (iv) as otherwise permitted by State Privacy Laws, including: Calif. 11 CCR 7050(a); Virginia Code Ann. § 59.1-582; Colorado Rev. Stat. § 6-1-1304; Utah Code Ann. § 13-61-304; Connecticut Public Act No. 22-15 Sec. 10 . Further, Mastercard may retain and use Customer Personal Data (and combine it with Personal Data from other customers) to build or improve the quality of its fraud detection and identity verification services, provided Mastercard does not: (i) build or modify profiles to use in providing services to another business; or (ii) correct or augment data acquired from another source.
4.2. With respect to Customer Personal Data, the Parties acknowledge and agree that:
4.2.1. Mastercard does not receive Customer Personal Data as consideration for any of the services;
4.2.2. Customer represents and warrants that it has provided notice that the Customer Personal Data is being used or disclosed as required consistent with State Privacy Laws.
4.2.3. Customer acknowledges and agrees that Mastercard may Process Metadata derived or generated from Customer Personal Data for its Business Purposes, such as to identify and protect against fraudulent or illegal activity. For clarity, Metadata does not include identifiers that indicate Customer as the source of Metadata. As between Mastercard and Customer, Mastercard exclusively will own rights, title, and interest in and to Metadata.
5.1. Limitations on Processing. Mastercard will Process Customer Personal Data as instructed in the Agreement, this U.S. Addendum, and as permitted by the State Privacy Laws. Except as expressly permitted by the State Privacy Laws, Mastercard is prohibited from (i) Selling or Sharing Customer Personal Data, (ii) retaining, using, or disclosing Customer Personal Data for any purpose other than for the specific purpose of performing the services specified in Exhibit 1a, (iii) retaining, using, or disclosing Customer Personal Data outside of the direct business relationship between the Parties, and (iv) combining Customer Personal Data with Personal Data obtained from, or on behalf of, sources other than Customer.
5.2. Confidentiality. Mastercard shall ensure that its employees, agents, subcontractors, and sub-processors are subject to a duty of confidentiality with respect to Customer Personal Data.
5.3. Subcontractors; Sub-processors. Mastercard’s current subcontractors and sub-processors are set forth in Exhibit 2. Mastercard shall notify Customer of any intended changes concerning the addition or replacement of subcontractors or sub-processors. Further, Mastercard shall ensure that Mastercard’s subcontractors or sub-processors who Process Customer Personal Data on Mastercard’s behalf agree in writing to the same or equivalent restrictions and requirements that apply to Mastercard in this U.S. Addendum and the Agreement with respect to Customer Personal Data, as well as to comply with the applicable State Privacy Laws.
5.4. Right to Object. Customer may object in writing to Mastercard’s appointment of a new subcontractor or sub-processor on reasonable grounds by notifying Mastercard in writing within 30 calendar days of receipt of notice in accordance with Section 4.3. In the event Customer objects, the Parties shall discuss Customer’s concerns in good faith with a view to achieving a commercially reasonable resolution.
6.1. Customer acknowledges and agrees that it is responsible for compliance with all notice, consent, opt out, and privacy policy requirements under the State Privacy Laws, as well as for complying with all requests from individuals with respect to Customer Personal Data (including but not limited to requests to know, requests to delete, and requests to opt out), as may be required by applicable law (“Consumer Requests”).
6.2. Mastercard shall provide commercially reasonable assistance, where required under the State Privacy Laws, to Customer for the fulfillment of Customer’s obligations to respond to Consumer Requests.
6.3. Subject to Section 6.4, and where applicable, Customer shall inform Mastercard of any Consumer Request that Mastercard must comply with under State Privacy Law. Customer shall provide Mastercard with the information necessary for Mastercard to comply with the request. For the avoidance of doubt, this Section 6.3 does not apply to the fulfillment of Consumer Requests submitted by Consumers to either Party in their roles as Controller.
6.4. Mastercard shall not be required to delete any Customer Personal Data to comply with a Customer’s request directed by Customer if Mastercard’s retention of such information is required under State Privacy Laws, including: Cal. Civ. Code § 1798.105(d); Virginia Code Ann. § 59.1-582; Colorado Rev. Stat. § 6-1-1304; Utah Code Ann. § 13-61-304; Connecticut Public Act No. 22-15 Sec. 10.
7.1. Scope. This Section 7 applies only to the retention, use, and disclosure of Mastercard Personal Data Sold by Mastercard, as a Controller, to Customer, as a Third Party pursuant to the Agreement.
7.2. Compliance with Obligations. Customer, its employees, and agents shall, with respect to Mastercard Personal Data, (a) comply with the obligations of the CPRA, (b) provide the level of privacy protection required by the CPRA, and (c) provide Mastercard with all reasonably-requested assistance to enable Mastercard to fulfill its own obligations under the CPRA, including by complying with a Consumer’s request to opt-out of Sale forwarded by Mastercard to Customer.
7.3. Compliance Assurance. Mastercard may take reasonable and appropriate steps to ensure that Customer uses Mastercard Personal Data consistent with Mastercard’s obligations under the CPRA.
7.4. Notice of Noncompliance. Customer shall notify Mastercard after it makes a determination that it can no longer meet its obligations under the CPRA with respect to the Mastercard Personal Data Sold to Customer by Mastercard.
7.5. Compliance Remediation. Upon receiving notice from Mastercard, Mastercard may take reasonable and appropriate steps to stop and remediate unauthorized use of Mastercard Personal Data made available to Customer.
8.1. Notwithstanding any provision to the contrary of the Agreement or this U.S. Addendum, the terms of this U.S. Addendum shall not apply to Mastercard’s Processing of Customer Personal Data or Mastercard Personal Data that is exempt from applicable State Privacy Laws.
9.1. The Parties agree to cooperate in good faith to enter into additional terms to address any modifications, amendments, or updates to applicable statutes, regulations or other laws pertaining to privacy and information security, including, where applicable, the State Privacy Laws.
Exhibit 1a - Customer Personal Data Processing Details
| Nature of the Processing | Processing Customer Personal Data to create Metadata and algorithmic models to provide the Services. |
|---|---|
| Purpose(s) of the Processing | Processing Customer Personal Data to create Metadata and algorithmic models to provide the Services. |
| Types of Customer Personal Data Subject to Processing |
The types of Personal Data included in the Customer Personal Data that Mastercard Processes for Processor Services Purposes are the following:
|
| Duration of Processing | Customer Personal Data will only be Processed for as long as necessary to provide the Services. |
Exhibit 1b - Mastercard Personal Data Processing Details
| Purpose(s) of Processing | Customer Processes Mastercard Personal Data to detect and prevent fraud. |
|---|
To support delivery of Mastercard’s services, Mastercard may engage and use third parties as sub-processors to Process certain Customer Personal Data. This Exhibit 2 provides information about the identity, location, and role of each sub-processor.
| Name and address of Sub-Processor | Location(s) where Personal Data are stored or from which Personal Data are accessed by the Sub-Processor | Description of Processing (including a clear delimitation of responsibilities in case several Sub-Processes are authorized) |
|---|---|---|
|
Amazon Web Services |
United States |
Cloud hosting services for Ekata Services and Mastercard Data |
|
Sumo Logic |
United States |
Logging service and storage |
|
NetNumber |
United States | Processing limited Personal Information to append additional information to be passed back to Customer. |
|
Neustar |
Co-located with API endpoints |
Processing limited Personal Information to append additional Personal Information to be passed back to Customer |