Canadian Data Processing Agreement

This Data Processing Agreement (the “Agreement”) between PayEvo (sometimes referred to as “PayEvo,” “PaymentEvolution,” “we,” “us,” or “our”), and the Client found on the applicable Order (sometimes referred to as “you,” or “your,”) and, together with the Order, Master Services Agreement, Schedule of Services and other relevant Service Attachments, forms the Agreement between the parties the terms to which the parties agree to be bound.

PIPEDA - This Canadian Data Privacy Agreement (the “Agreement”) reflects the requirements of the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”) of 2004 and its implementing regulations, as amended or superseded from time to time (S.C. 2000, c. 5). This Agreement makes clear that PayEvo is acting as a “Service Provider” for PIPEDA purposes.

This Agreement shall only apply and bind the Parties if and to the extent of the activity between the Parties is considered “Commercial Activity” under PIPEDA. This Agreement prevails over any conflicting terms of the Agreement, but does not otherwise modify the Agreement. All capitalized terms not defined in this Agreement shall have the meanings set forth in the PIPEDA. Client enters into this Agreement on behalf of itself and, to the extent required under the PIPEDA, in the name and on behalf of Client’s Authorized Affiliates (defined below).

Definitions

Affiliate: means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
Authorized Affiliate: means any of Clients’ Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Scope and Applicability of this Agreement.
Applicable Law: means all present and future laws, statutes, ordinances, regulations, judgement, orders, rules, directions of any court or governmental authority that are enforceable in Canada, and includes Applicable Privacy Law;
Applicable Privacy Law: means any privacy legislation that may be applicable in the circumstances, which may include the Personal Information Protection and Electronic Documents Act (“PIPEDA”), provincial legislation deemed substantially similar to PIPEDA and/or provincial health information legislation;
Commissioner: means the Information and Privacy Commissioner as applicable;
Conflicting Foreign Order: means any order, subpoena, directive, ruling, judgment, injunction, award or decree, decision, request or other requirement issued from a foreign court, agency of a foreign state or other authority outside Canada or any foreign legislation the compliance with which would or could potentially breach Applicable Privacy Law;
Confidentiality Agreement: means a standard agreement between PayEvo and its Personnel, signed as part of PayEvo’s operating procedures, requiring that Personnel comply with the requirements of Applicable Privacy Law, and other Applicable Law, in a manner which is intended to ensure compliance by PayEvo and its Personnel under this Agreement;
Contact Information: means information to enable an individual at a place of business to be contacted and includes the name, position name or title, business telephone number, business address and business email of the individual;
Excluded Information: or “Excluded Records” means information, documents or recorded information that (a) relate solely to PayEvo’s internal administration, finances, management, or labor and employment matters, unless they contain Personal Information about an individual other than Personnel or other third parties with whom PayEvo has dealings unrelated to the subject matter of the Agreement; or (b) Client confirms in writing are excluded from the application of this Agreement;
Material Breach: includes, without limitation, (i) non-compliance by PayEvo with any provision of this Agreement relating to or resulting from the collection, use, disclosure, storage, disposal or destruction of any Personal Information or Records in contravention of Applicable Privacy Law and/or this Agreement; and (ii) non-compliance by PayEvo to take reasonable steps to cure any contravention of Applicable Privacy Law and/or this Agreement to the satisfaction of Client within 30 days after written notice is given to PayEvo describing the breach in reasonable detail or otherwise within 30 days of PayEvo becoming aware of the breach;
Permitted Purpose: means access to Records or Personal Information that is necessary for provision of the Services (as defined in the Agreement);
Personal Health Information: means personal health information about an individual as defined by Applicable Privacy Law;
Personal Information: means recorded information about an identifiable individual, excluding Contact Information and Excluded Information, that is collected or created by PayEvo or otherwise obtained or held by or accessible to PayEvo as a result of the Agreement or any previous agreement between Client and PayEvo dealing with the same subject matter as the Agreement, and specifically includes Personal Health Information;
Personnel: means any employees, officers, directors, contractors, subcontractors, associates, representatives or other persons engaged by PayEvo for the purposes of fulfilling PayEvo’s obligations under the Agreement;
Privacy Representative: means the designate of PayEvo or Client with responsibility for compliance with Applicable Privacy Law and this Agreement;
Record: includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which Personal Information is recorded or stored by graphic, electronic, mechanical or other means which are collected or produced by PayEvo in the course of delivering Services or otherwise performing its obligations under the Agreement, but does not include Excluded Records.

Provider Subject to Applicable Law

PayEvo agrees that, in relation to the collection, use, processing, sharing, disclosure, storage, disposal or destruction of any Personal Information or Records, it is subject to and will comply with the requirements of Applicable Privacy Law and this Agreement, including any applicable order or security requirements prescribed by the Commissioner or a court. PayEvo will ensure that it and its Personnel are familiar with its and their obligations under Applicable Privacy Law.

PayEvo acknowledges that Personal Health Information may be disclosed to PayEvo for the sole purpose of performing the Services. PayEvo shall exercise all reasonable precautions to protect Personal Health Information from unauthorized access, disclosure, copying, use or modification, storage and retention and, in any event, treat any information which is Personal Health Information in accordance with Applicable Privacy Law. In particular, the use of Personal Health Information must be restricted to the purposes and activities as outlined in Applicable Privacy Law.

PayEvo agrees that if it is a “service provider”, “information manager”, “information management service provider” or “agent” as defined in Applicable Privacy Law, as a result of the type of Services that it is providing to Client under the Agreement, PayEvo agrees to comply with its obligations under Applicable Privacy Law in that regard.

PayEvo agrees to maintain a privacy policy in compliance with Applicable Privacy Law.

PayEvo specifically assumes all responsibility for the Personnel and for the breach by any one or more of them of any provision of Applicable Privacy Law or this Agreement.

Control of and Rights in the Record(s) and Consent

The Parties acknowledge and agree that as between Client and PayEvo:

All right, title, interest and control in and to all Records shall remain with Client. No proprietary right or other interest respecting the Records, other than as expressly set out herein, is granted to PayEvo under this Agreement or the Agreement, by implication or otherwise. PayEvo is granted temporary access to the Personal Information on the terms and conditions of this Agreement, for the sole and express purpose of performing the Services and for no other use or purpose. Where PayEvo provides services under contract with one or more other parties in which such other parties also assert control over the same or overlapping Records, Client will work with such other parties to resolve each other’s rights and obligations with respect to such Records and PayEvo will not be considered to be in breach of this Agreement by reason of its inability to provide unfettered control over the Records to Client.
It is the responsibility of Client to identify and have directly or indirectly obtained any consent from, or given any notice to, individuals as required under Applicable Privacy Laws, for PayEvo’s collection, use, processing, sharing, disclosure, storage, security, destruction, management or administration of Personal Information. If Client requires PayEvo to collect Personal Information on its behalf pursuant to this Section, Client will identify to PayEvo any requirements of Applicable Privacy Law regarding collection of the Personal Information.

Collection, Use & Disclosure of Personal Information

PayEvo will only collect, use and disclose Personal Information on behalf of Client as necessary for the performance of the Services or as otherwise authorized by Client in writing or required or authorized by Applicable Law.

PayEvo will ensure that neither it nor its Personnel collects, creates, copies, reproduces, uses, stores, discloses or provides access to any Personal Information except in compliance with this Agreement and Applicable Privacy Law and for purposes directly related to or necessary for the performance of the Services or as otherwise required by Applicable Law.

Referral of Requests for Access or Correction

If PayEvo receives a request under Applicable Privacy Law for access to or correction of Personal Information from a person other than Client, PayEvo will promptly advise the person to make the request to Client and provide the name and contact information for Client’s Privacy Representative, and PayEvo shall notify Client of any such request.

Cooperation in Responding to Requests for Access

Where Client communicates to PayEvo that it has received a request for access to Personal Information, PayEvo will locate and supply to Client any and all Records in its custody that fall within the scope of the request. PayEvo will comply with this obligation within a reasonable period that allows Client to comply with its obligations under Applicable Privacy Law.

Accuracy and Correction of Personal Information

If PayEvo engages in the collection, maintenance or updating of Personal Information or the creation of Records on behalf of Client under the Agreement, PayEvo will make every reasonable effort to ensure the accuracy and completeness of such Personal Information generally and as required by Applicable Privacy Law.

Protection & Security of Personal Information

PayEvo must protect Personal Information to ensure compliance with Applicable Privacy Law, by making reasonable security arrangements against such risks as theft, loss or unauthorized access, collection, use, disclosure or disposal.

Access by Personnel

PayEvo will ensure that its Personnel are granted access to the Personal Information only where such access is necessary for the performance of the Services, and subject to the following terms:

Prior to access, PayEvo has entered into its standard Confidentiality Agreement with its Personnel or PayEvo’s Personnel has expressly agreed to comply with PayEvo’s internal documents acknowledging the obligations of protecting Personal Information pursuant to this Agreement and Applicable Privacy Law;
PayEvo will revoke the access rights of any person who engages in the unauthorized collection, use or disclosure of Personal Information or otherwise breaches the Confidentiality Agreement or Applicable Privacy Law; and
PayEvo will ensure Personnel with access to Personal Information are familiar and comply with the obligations of PayEvo under this Agreement and Applicable Privacy Law.

Subcontractors

PayEvo acknowledges that if it uses subcontractors to perform any services for Client that it will require subcontractors to be bound by terms equivalent to this Agreement and Applicable Privacy Law.

Access and Storage Outside of Canada

Client hereby acknowledges and consents that Personal Information and Records may be collected, used, processed, shared, disclosed, stored, secured, destroyed, managed or administered from outside of Canada by PayEvo using cloud computing or other information technology infrastructure selected by PayEvo and managed using third parties, and that Client has provided all required notices and information and/or obtained all required consents and approvals for such collection, use, processing, sharing, disclosure, storage, security, destruction, management and administration outside of Canada.

Notice of Demands for Disclosure

If PayEvo or anyone to whom PayEvo transmits Personal Information pursuant to a Permitted Purpose becomes legally compelled or otherwise receives a demand to disclose Personal Information other than permitted by Applicable Privacy Law, including without limitation pursuant to any Conflicting Foreign Order, unless prohibited by law, PayEvo will not do so unless and until: (i) Client has been notified of such requirement; (ii) the parties have appeared before a Canadian Court; and (iii) the Canadian Court has ordered the disclosure. PayEvo is responsible to ensure that it obtains such contractual rights or makes other such arrangements with its Personnel or such other third parties to whom it may grant access to Personal Information as may be necessary to enable it to comply with the provisions of this Section. Nothing in this Agreement will be interpreted or construed to prohibit PayEvo from complying with any valid court order made under the laws of Canada applicable in the Province.

Aggregate and De-Identified Data

Notwithstanding the provisions of this Agreement, PayEvo retains the right to use and disclose aggregated and De-Identified Data in any manner. “De-Identified Data” means information (or any portion thereof) that has been the subject of reasonable efforts to de-identify, aggregate and/or anonymize such data with the result that no individual, entity or particular Record can be identified, such that it is no longer Personal Information as defined in Applicable Privacy Laws.

Privacy Representative

PayEvo will appoint a Privacy Representative and such person will have sufficient authority to make decisions and execute documents on behalf of PayEvo as may be required from time to time for the administration of this Agreement. PayEvo shall promptly provide Client the name and contact details of its Privacy Representative and shall notify Client of any change of its Privacy Representative.

Notice of Breach and Corrective Action

PayEvo will provide Client with prompt written notice of any actual or anticipated Material Breach, including full particulars of such breach.

PayEvo will cooperate with Client in preventing the occurrence or recurrence of any breach of this Agreement or Applicable Privacy Law, including, if requested to do so: by preparing a written proposal to address or prevent further occurrences within PayEvo’s systems.

Inspection, Investigation & Cooperation

Upon reasonable request by Client, PayEvo will provide information to a Commissioner pertaining to PayEvo’s handling of Personal Information demonstrating that PayEvo is compliant with this Agreement, the Agreement and Applicable Privacy Law, including:

PayEvo’s privacy policy; and
Information regarding any complaints against PayEvo to a Commissioner.

PayEvo will reasonably cooperate at Client’s cost with Client in the event of any audit, investigation, inquiry, complaint, suit or other legal proceeding regarding any actual or alleged breach of Applicable Privacy Law or this Agreement, for a Material Breach.

Default & Termination

Notwithstanding anything in the Agreement to the contrary, PayEvo and Client hereby agree that a Material Breach by PayEvo will give rise to a right on the part of Client to terminate the Agreement immediately upon written notice.

Return or Destruction of the Record Upon Request

Except as otherwise specified in the Agreement, PayEvo will retain the Personal Information and Records until it is provided with a written direction from Client regarding its return or destruction.

Upon the expiry or earlier termination of the Agreement or, at any time upon the written request of Client, PayEvo will promptly: (i) return or deliver all Records, including any copies thereof, to Client; or (ii) destroy, according to Client’s instructions, all documents or other Records, including any copies thereof, in any form or format whatsoever in PayEvo’s possession constituting or based upon Personal Information.

After a request is made under this Section, PayEvo will not retain any Records for any purpose without the prior written consent of Client. If, for any reason, PayEvo fails to return or destroy any Record in accordance with this Section, PayEvo’s obligations pursuant to this Agreement will continue in full force and effect.

General

The parties acknowledge and agree that either party may disclose the Agreement or portions thereof as may be required pursuant to Applicable Privacy Law.

If a provision of this Agreement or the Agreement conflicts with a requirement of Applicable Privacy Law, the conflicting provision of the Agreement (or direction) will be inoperative to the extent of the conflict.

Unless otherwise expressly provided in the Agreement, if a provision of this Agreement is inconsistent or conflicts with a provision of the Agreement, the conflicting or inconsistent provision in the Agreement will be inoperative to the extent of the conflict.

PayEvo’s obligations under this Agreement will continue despite the expiry or earlier termination of the Agreement until such time as the Personal Information and Records are returned to Client or securely destroyed in accordance with this Agreement.

Canadian data Processing Agreement