Effective: January 1, 2022
This Merchant Data Processing Addendum (the “Addendum”) is entered into between Plum Technologies, LLC., including its subsidiaries and affiliates (referred to generally as “Plum”) and the Merchant and forms part of the Merchant Agreement(s) entered into between Plum and Merchant (collectively the “Agreement”) and applies where either of the Parties process Personal Information under the Agreement.
1.1 Plum provides services to Merchant under the Agreement that may involve the processing of Personal Information.
1.2 Both Plum and Merchant (each a “Party” or together the “Parties”) agree to comply in good faith with the terms set out in this Addendum. The Parties wish to set out their mutual obligations in relation to the Processing of Personal Information in this Addendum.
1.3 If any language in this Addendum conflicts with the Agreement, this Addendum shall control.
Unless otherwise set out below, each capitalized term in this Addendum shall have the meaning set out in the Agreement.
2.1 “Alternative Transfer Mechanism” means a mechanism other than the Standard Contractual Clauses that enables the lawful transfer of Personal Information from the European Economic Area (“EEA”), the United Kingdom (“UK”) or Switzerland to a third country in accordance with Applicable Data Protection Laws, including, but not limited to, programs both approved and operated by the U.S. Department of Commerce and approved by the European Commission or other applicable governmental authority or entity.
2.2 “Applicable Data Protection Laws” means all applicable federal, state, provincial, regional and local laws, directives, regulations, and rules imposed by any government, agency or authority in relation to the processing and security of Personal Information, including, but not limited, to the European Union’s General Data Protection Regulation (Regulation 2016/679) pertaining to the protection of individuals within the European Economic Area (“EU GDPR”), the EU Directive on Privacy and Electronic Communications 2002/58/EC (“PECR”), the data protection law of the United Kingdom, including but not limited to the EU GDPR as incorporated into the United Kingdom, the Data Protection Act 2018 and any additional legislation (“UK GDPR”), Switzerland’s Federal Data Protection Act of 19 June 1992, Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), as well as any applicable provincial legislation, the CCPA, and the VCDPA as any of the foregoing may be amended, replaced or superseded.
2.3 “CCPA” means, as applicable, the California Consumer Privacy Act of 2018, California Civil Code 1798.100 et seq. (2018), including as amended by the California Privacy Rights Act of 2020; and any subsequent replacements to the foregoing laws. All implementing regulations forming part of the laws above shall also be included in this definition.
2.4 “Controller” means the Party that alone or jointly with others determines the purposes and means of the Processing of Personal Information. For the purposes of this Agreement, “Controller” includes similarly defined terms under Applicable Data Protection Laws, including, but not limited to, a “business”.
2.5 “GDPR” means, as applicable, the EU GDPR and the UK GDPR.
2.6 "Individual” has the same meaning as “consumer” or “data subject” under Applicable Data Protection Laws.
2.7 “Individual Rights Request” means the exercise of an individual’s right over their Personal Information (for example deletion, access or rectification) and shall be understood to have the same meaning as a “data subject rights request”, “a consumer right”, “a personal data rights request”, and similar terms as may be defined under Applicable Data Protection Laws.
2.8 “Sale” or “Sell” has the same meaning as such term is defined in the CCPA, any subsequent or similar legislation or other Applicable Data Protection Laws as enacted or amended from time to time.
2.9 “Share” or “Sharing” has the same meaning as such term is defined in the CCPA, any subsequent or similar legislation or other Applicable Data Protection Laws as enacted or amended from time to time.
2.10 “Standard Contractual Clauses” or “SCCs” means (i) in respect of EU Personal Information, the Standard Contractual Clauses implemented by the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 for the transfer of personal data to third countries pursuant to the EU GDPR, as updated or replaced from time to time (“EU Standard Contractual Clauses”) and (ii) in respect of UK Personal Information, means the International Data Transfer Addendum to the EU Standard Contractual Clauses issued by the UK Information Commissioner’s Office (ICO) in accordance with the UK GDPR and the Data Protection Act 2018, as amended or replaced (“UK Addendum”).
2.11 “Sub-processor” means any additional authorized Processor engaged by the original Processor that agrees to receive any Personal Information from the Controller as part of the Services.
2.12 “Third Party” means any Controller, Processor or Sub-processor engaged by a Party that agrees to receive Personal Information as part of the Services.
2.13 “VCDPA” means as applicable, the Virginia’s Consumer Data Protection Act 53.1 et seq. (2021) as amended or replaced. All implementing regulations forming part of the laws above shall also be included in this definition.
To the extent Plum and Merchant Process Personal Information as Controllers as part of the Agreement, the Parties agree that:
3.1 Independent controllers: Each Party shall act as independent Controller and no “Joint Controller” relationship shall exist under the Applicable Data Protection Laws.
3.2 Compliance with law: Both Parties agree to comply with Applicable Data Protection Laws and shall not by any act or omission, put the other Party in breach of those Laws.
3.3 Compliance obligations: Each Party is obligated to manage its respective compliance obligations pursuant to Applicable Data Protection Laws and putting in place any applicable controls or governance, which may include (i) the provision and maintenance of a privacy statement or similar notice for each Party’s respective Processing; (ii) providing written notices to individuals or obtaining any required consents (including consents for secondary uses) before any initial or subsequent use or disclosure of Personal Information; (iii) fulfilment and management of opt-outs and individual rights requests; (iv) compliance with any applicable direct marketing or spam legislation, and (v) the oversight of Processing operations involving Personal Information.
3.4 Individual Rights Requests: Each Party shall comply with Individual Rights Requests under Applicable Data Protection Laws (including the right to withdraw consent, of access, restriction, rectification and erasure) in relation to Personal Information. The Parties shall reasonably cooperate with each other to respond to such requests.
3.5 No Sales or Sharing: Each Party represents and warrants that, to the best of its knowledge, the transfer of Personal Information under the Agreement between the Parties does not constitute a “Sale” or “Sharing” under the Applicable Data Protection Laws. The Parties agree that any transfers of Personal Information to Third Parties, whether made directly by a Party or made at the request of the other Party will not constitute a “Sale” or “Sharing”.
3.6 Specifically with regard to any Personal Information Merchant uploads or discloses to Plum, Merchant represents and warrants that it has provided the appropriate notice to Individuals and collected any required consent in compliance with Sections 3.3 of this Addendum, and has a lawful basis for processing and disclosing the Personal Information with Plum in connection with the Services.
3.7 Where Merchant directs that Plum disclose Personal Information to any Third Parties (including partners), Merchant agrees that such disclosure is in line with its obligations under Section 3.3 of this Addendum and that Merchant is responsible for any downstream compliance.
3.8 Acknowledges that by using the Services, the Personal Information of Merchant, Merchant Employees and Customers will be processed in accordance with Plum’s Privacy Statement found at https://plumpos.com/legal/privacy. Merchant and its Employees are encouraged to read the Privacy Statement carefully, as it forms a binding part of this Agreement and contains important information about individuals’ rights and how Plum manages Personal Information. Merchant shall make the Privacy Statement available to its Employees and Customers (as appropriate) in such manner as Plum may reasonably request from time to time.
To the extent Plum Processes Personal Information as a Processor under the Agreement, Plum agrees that:
4.1 Processing: Plum shall only Process the Personal Information on documented instructions of the Merchant and in order to provide the Services or where required by applicable law, in which case Plum will inform Merchant of the legal requirement unless Plum is prohibited from doing so by law.
4.2 Audits and Assessments: To the extent required under the Applicable Data Protection Laws, Plum shall make available to Merchant all information necessary to demonstrate compliance with the obligations under such Laws.
4.3 Confidentiality: Anyone authorized to process Personal Information on behalf of Merchant shall either have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
4.4 CCPA Service Provider: Where Plum acts as a “service provider” for the purposes of the CCPA, and with respect to Personal Information it processes in such capacity, in addition to the obligations set forth in this DPA and to the extent the CCPA applies: Plum shall not (a) combine Personal Information it receives in in connection with the Services with Personal Information it may receive from other sources (b) “sell” or “share” Personal Information as such terms are defined in the CCPA (c) retain, use, or disclose Personal Information for any purpose other than to provide the Services, and as otherwise permitted by applicable law (including but not limited to Applicable Data Protection Laws), (d) retain, use or disclose Personal Information outside of the direct business relationship between the parties or outside the provision of the Services, and (e) disclose Personal Information to any person without including them on the list of Sub-processors described below. The parties acknowledge that the transfer of Personal Information is in furtherance of a business purpose, described in the Agreement.
4.5 Sub-processors: Merchant grants Plum a general authorisation to appoint Sub- processors to Process Personal Information under the Agreement and permits each Sub- processor to appoint Sub-processors in accordance with the terms herein. Plum will have a written agreement with the Sub-processor imposing substantially similar obligations as those set out under this Addendum. Plum is responsible to Merchant for the failure of any Sub-processors to perform their obligations under this Addendum. See Annex 3 of this Addendum for a link to a website detailing Plum’s current Sub-processors. By visiting that site, Merchant may also register to be notified of any modifications to the Sub-processor list (a “Notification”).
4.6 GDPR Sub-processors: In the case of a Sub-processor appointed that will Process Personal Information subject to the GDPR, if Merchant objects on reasonable grounds to the use of a specific Sub-processor it must inform Plum of such objection in writing (by email to privacy@Plumpos.com) within 15 days of receipt of Notification. Plum will use reasonable efforts to make available to Merchant a change in the Services or recommend a commercially-reasonable change to the configuration or use of the Services by Merchant to avoid Processing of Personal Information by the objected-to new Subprocessor. Plum shall at its option (a) within a commercially reasonable timeframe find a replacement Sub- processor; or (b) provide a termination right pursuant to the Agreement. Before the Sub- processor first processes Personal Information, Plum agrees to carry out adequate due diligence to ensure that the Sub-processor is capable of providing the level of protection for Personal Information required by the Agreement. Plum will provide for Merchant to review the form of agreement for such written contract, as Merchant may request up to once per year.
4.7 Retention and deletion: Upon termination of the Agreement, Plum shall return or delete any Personal Information on Merchant’s request, except where it is required to retain the Personal Information to comply with applicable laws, or, where permitted, such retention is in line with Plum’s current data retention schedule.
4.8 Government Access Requests: If Plum becomes aware that any government authority (including law enforcement) wishes to obtain access to or a copy of some or all of the Personal Information of Merchant, whether on a voluntary or a mandatory basis, then unless legally prohibited under applicable law, Plum shall: (1) immediately notify Merchant (2) inform the requestor that Plum is a Processor and is not authorized to disclose the Personal Information (3) inform the requestor that the request must be sent to the Merchant (4) not provide access to the Personal Information unless required by applicable law or authorized by the Merchant in writing. If applicable law prohibits Plum from complying with (1) to (4) above, then Plum shall use any lawful means to challenge (a) disclosure of the Personal Information and (b) the prohibition to notify Merchant.
4.9 Additional GDPR Processor obligations: In addition to the other requirements set out in this Addendum, to the extent Plum Processes Personal Information subject to the GDPR, UK GDPR or laws of Switzerland, Plum shall comply with all requirements under Article 28 of the GDPR in relation to Plum’s role as a Processor (or the relevant equivalent requirements as applicable). This includes the contractual obligations set out in Article 28(3) as set out in this Addendum.
5.1 Security Measures: Considering the state of the art, costs of implementation, the nature, scope, context and purpose of the Processing, each Party shall implement and maintain a written information security program embodying all appropriate technical, organizational and administrative security measures required to protect the privacy and security of any Personal Information Processed as part of the Services. In all cases, the Parties shall implement any and all security measures imposed under the Applicable Data Protection Laws.
6.1 Security Incident response program: Each Party shall implement and maintain a written incident response program for the management of Security Incidents.
6.2 Notification of a Security Incident: If either Party discovers, is notified of or reasonably suspects the occurrence of a Security Incident impacting any Personal Information Processed under the Agreement, that Party will notify the other Party without undue delay. The timing of such notification shall not exceed seventy-two (72) hours after having become aware of a Security Incident or such other time limit imposed under the Applicable Data Protection Laws. Such notice shall (where known) contain the following: (i) the facts of the Security Incident, including the date of discovery, a date range of unauthorized activity, and any remediation and mitigation activities that have been taken or put in place; (ii) a description of the categories and approximate number of individuals and records affected by the Security Incident; (iii) the Party’s assessment, developed through reasonable diligence, of the likely consequences of the Security Incident with respect to the affected Personal Information and affected individuals; and (iv) the name and the contact details of the data protection officer or other contact point where more information can be obtained. The Parties will reasonably assist each with any obligation to inform any impact individuals or any regulatory body of the Security Incident.
6.3 Costs and remediation obligations: To the extent any Security Incident is attributable to the actions of a specific Party or its Third Parties, that Party shall be responsible for all costs associated with the Security Incident, including, but limited to, the following: (i) the cost of providing notice to affected individuals; (ii) the cost of providing notice to government agencies, credit bureaus, and/or other entities required to be notified under applicable law; (iii) the cost of providing affected individuals with credit monitoring services (as appropriate or as required by the Applicable Data Protection Laws); (iv) call center support for such affected individuals; (v) the cost of any other measures required under the Applicable Data Protection Laws; and (vi) other losses, liabilities or expenses for which that Party would be liable. In all cases, as to the Personal Information Processed under this Agreement impacted by a Security Incident, the Parties shall, where appropriate and reasonable, cooperate and work together as part of the remediation efforts.
7.1 Reasonable support: Where appropriate, each Party shall provide reasonable assistance and cooperation in relation to each Party’s compliance obligations under the Agreement and the Applicable Data Protection Laws. This may include support with individual rights requests or notifications from any governmental, regulatory or law enforcement authority pertaining to the Processing of Personal Information under this Addendum. In the event either Party receives a notification or request directed to the other Party pursuant to this Section, that Party shall notify the other Party and shall not respond to the individual or governmental authority making the request unless required to do so under the law (including the Applicable Data Protection Laws). Merchant acknowledges that in certain instances it may not be able to respond to requests under this section and as such Merchant hereby authorizes and instructs Plum to take the steps necessary to verify and comply with an individual rights request that relates to the Services under the Agreement and any Personal Information that Plum processes on Merchant’s behalf, including any such request that Plum receives directly from an individual. Merchant acknowledges that Plum reserves the right to direct certain Individual Rights Requests to be managed by Merchant, for example where the nature of Merchant’s relationship with an Individual, or the nature of the processing makes Merchant best equipped to address such Request. Should Plum receive a request that is not related to Services under the Agreement and is associated with Merchant, Plum will promptly notify Merchant of such request and/or instruct the consumer to contact the Merchant directly. Should Merchant receive an individual rights request related to the Services, Merchant shall notify Plum, and Plum shall provide reasonable assistance in complying with such request.
7.2 Third Parties: To the extent either Party is permitted to utilize any Third Parties as part of the Services under the Agreement, that Party shall ensure that those relationships are governed by a written agreement that imposes appropriate privacy obligations and security controls substantially similar to the measures contained in this Addendum. In all cases, the Party engaging the Third Party is responsible for any acts or omissions of the Third Party. For the avoidance of doubt, this includes instances where the Merchant elects to transfer Personal Information to a Third Party, including any third-party partners.
8.1 Transfers generally: Each Party is permitted to transfer Personal Information under the Agreement to locations around the world provided that such transfers comply with Applicable Data Protection Laws.
8.2 Transfer Types: The following data transfer scenarios are applicable in respect of EEA, Switzerland and UK transfers: (i) Merchant EEA, Switzerland and UK Personal Information is first processed by Plum in the EEA, Switzerland and/or UK and is subsequently transferred to a country not recognized by the European Commission, the UK ICO or the Swiss Federal Data Protection Authority as providing an adequate level of protection of Personal Information (“Third Country”). Such transfers are governed by an intra-company set of Standard Contractual Clauses entered into among Plum affiliates as part of its compliance with this Section and as part of providing the Services under the Agreement. (ii) Merchant EEA, Switzerland and UK Personal Information is not first processed by Plum in the EEA, Switzerland and/or UK and instead is transferred directly to a Third Country. Such transfers are governed by the Standard Contractual Clauses (including the UK Addendum).
8.3 Alternative Transfer Mechanisms. It is the responsibility of any Party relying on an Alternative Transfer Mechanism to ensure it provides the same level of protection of Personal Information as imposed under this Addendum.
9.1 Assurances: Notwithstanding any requirements or specific rights granted to the Parties under the Applicable Data Protection Laws, each Party shall, with reasonable notice, have the right to obtain assurances from the other Party to verify each Party’s compliance with the terms of this Addendum if it has a reasonable suspicion of a breach or a potential breach under this Addendum.
9.2 Survival: Each Party’s obligations under this Addendum will survive the termination of the Agreement to the extent either Party continues to Process Personal Information covered by the Agreement.
9.3 Severability: If any court or competent authority decides that any term of this Addendum is held to be invalid, unlawful, or unenforceable to any extent, such term shall, to that extent only, be severed from the remaining terms, which shall continue to be valid to the fullest extent permitted by law.
9.4 Waiver: Either Party’s failure to enforce any provision of this Addendum shall not constitute a waiver of that or any other provision and will not relieve the other Party from the obligation to comply with such provision.
9.5 Changes to this Addendum: From time to time, subject the Applicable Data Protection Laws, Plum may update this Addendum to maintain compliance with the Applicable Data Protection Laws, for internal business purposes, or as otherwise provided under the Agreement provided that any such updates do not materially diminish either Party’s ability to comply with the Applicable Data Protection Laws or result in a material detriment to Merchant (as reasonably determined by Plum). The Parties agree that any such updates to this Addendum shall be effective on the publication date.
Plum engages various service providers to support the provision of Plum Services (“Sub-processors”). In order to provide the relevant service, sub-processors may be required to process certain personal information. This section explains how Plum engages with various Sub-processors. Due to the evolving nature of our business operations, our Sub-processors may change over time. To receive updates to the Plum Sub-processor list visit our website at https://plumpos.com/legal/subprocessor-list.