Data Processing Addendum

This Data Processing Addendum (“Addendum”) forms an integral part of the Platform Agreement available at:
https://www.hyperguest.com/platform-terms-of-service-for-travel-providers/
and/or
https://www.hyperguest.com/platform-terms-of-service-for-accommodation-providers/
(as the case may be)
‍
(hereinafter: “Platform Agreement”) or any other agreement (Platform Agreement or any such other agreement hereinafter referred to also as the “Agreement”) concluded between HyperGuest as defined in the respective Agreement (“HyperGuest”) and you (“Customer”). This Addendum supplements the terms of the Agreement concluded between HyperGuest and Customer; whereas in case of any conflicting terms between Agreement and this Addendum, this Addendum shall prevail unless the Parties explicitly agree in writing on specific derogations from this Addendum in the Agreement.

Previous versions:

(1) Version: 3720, Effective date: 7 March 2020

(2) Version 141121, Last updated: November 14th, 2021

1. Definitions

For the purposes of this Addendum, capitalized terms shall have the following meanings.
Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement or Master Terms and Conditions.

“Affiliate(s)” means with respect to an entity, the “Affiliate” is any other entity directly or indirectly controlling, controlled by, or under direct or indirect common control by the initial entity. An entity controls another entity if such entity, directly or indirectly, either owns (i) 20% or more of the shares having ordinary voting rights for the election of directors of such entity; or (ii) the power to direct or cause the direction of management or policies of the other entity, whether through the ownership of voting securities, by contract, or otherwise;
“Authorized User” means a person authorized by Customer to have access to the Platform and to provide instructions to and receive communication from HyperGuest, notwithstanding whether via the Platform, via e-mail or otherwise;
“Controller” means a person or entity that determines the purposes and means of the Processing of Personal Data;
“Data Protection Legislation” means GDPR, and/or any other applicable data privacy legislation of the country of registration of HyperGuest Affiliate as defined in the Agreement;
“Data Subject” means the identified or identifiable person to whom Personal Data relates;
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
“Personal Data” means any information relating to (i) an identified or identifiable natural person and/or, (ii) an identified or identifiable legal entity (where such information is protected by Data Protection Legislation similarly to data which identifies a living individual); which, for the purpose of this Addendum, shall include personal data of Guests ie. data contained in the contact forms, contact and identification information, including name, title, email, and address, ID and/or passport numbers, payment details, Guests’ preferences, and Customer’s services details and limited connection and location data (city). Personal Data do not contain any special data categories.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic 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; for the avoidance of doubts, the processing of other information than Personal Data (e.g. anonymised data) for the purpose of enhancing the HyperGuest services does not fall under the scope of this Addendum;
“Processor” or “Sub-processor” means a person or entity that Processes Personal Data on behalf of a Controller and/or Processor, as applicable;
“Services” for the purpose of this Addendum means the services provided by HyperGuest to the Customer pursuant to the Agreement;
“Standard Contractual Clauses” means the standard contractual clauses (processors) for the transfer of personal data set out in the Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as set out in Schedule No. 1 hereof or any other standard contractual clauses that will be adopted by European Commission in the future (if applicable);
“Supervisory Authority” means an independent public authority which is established by an EU Member State or other country pursuant to the GDPR or a corresponding law.

2. Data processing

2.1 Processing of Personal Data

HyperGuest and Customer acknowledge that Customer is the Controller or primary Processor with regard to the Processing of relevant Personal Data. HyperGuest shall Process Personal Data only as a Processor or Sub-processor (as applicable to Customer’s use of the Services) on Customer’s behalf and only to the extent and in such a manner as is necessary for the purposes specified by and in accordance with this Addendum, the Agreement or as otherwise instructed by the Customer from time to time. Where HyperGuest reasonably believes that a Customer instruction is contrary to: (i) applicable law and regulations or (ii) the provisions of the Agreement or the Addendum, HyperGuest will undertake all reasonable endeavors to inform the Customer and is authorized to defer the performance of the relevant instruction until it has been amended by Customer to the extent required by HyperGuest to satisfy it that such instruction is lawful, or is mutually agreed by both Customer and HyperGuest to be lawful.

3. HyperGuest’s processing

3.1 HyperGuest’ Processing of Personal Data

HyperGuest shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Authorised Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. The Customer hereby instructs HyperGuest to inform Data Subjects about the Processing of their Personal Data on behalf of Customer via email and about the possibility to use HyperGuest services to manage Data Subjects’ data, bookings and associated services. HyperGuest shall keep a log of the actually performed Processing operations.

3.2 Technical and Organizational Measures

HyperGuest shall maintain and implement reasonable and appropriate technical and organizational measures aimed at protecting Personal Data against accidental or unlawful destruction or accidental loss, alteration unauthorized disclosure or access, and in relation to the security of Personal Data and the platforms used to provide the Services as described in the Data Protection Legislation. In implementing such measures HyperGuest shall be entitled to take into account the current standard practice in determining what is reasonable, as well as the proportionality of the cost of putting such measures in place when weighed against the potential harm to relevant Data Subjects that the putting into place of those measures is designed to protect against.

3.3 Personnel

HyperGuest shall ensure that its Personnel engaged in the Processing of Personal Data are informed about its obligation and responsibilities hereunder, have received appropriate training, and are informed about the confidential nature of the Personal Data. The “Personnel” means those employees and/or agents, consultants, subcontractors or other third parties: (i) who are engaged by HyperGuest so that it may fulfill its obligations to Customer under the Agreement or Addendum, and (ii) who are subject to confidentiality obligations in substantially the same extent as set out in Agreement and Addendum. HyperGuest shall ensure that Personnel’s access to Personal Data is limited to those performing Services in accordance with the Agreement, and the Personnel confidentiality obligations shall survive the termination of the Personnel engagement.

3.4 Notifications.

HyperGuest shall notify the Customer as soon as commercially reasonable in writing:

3.4.1 of any communication received from an individual relating to (i) an individual’s rights to access, modify, correct, delete or block his or her Personal Data; (ii) an individual’s right to rectify, restrict or erase his or her Personal Data, to data portability, to object to the Processing and not to be subject to automated decision-making; and (iii) any complaint about Customer’s Processing of Personal Data; to the extent not prohibited by law, of any subpoena or other judicial or administrative order or proceeding seeking access to, or disclosure of Personal Data;

3.4.2 to the extent not prohibited by law, of any complaint, notice or other communication that relates to Customer’s compliance with data protection and privacy law and the Processing of Personal Data. HyperGuest shall provide the Customer with commercially reasonable cooperation and assistance (at Customer’s expense) in relation to such complaint, notice or communication; and

3.4.3 of a material breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or unauthorized access to Personal Data of which we become aware, in accordance with applicable law (“Security Breach”). HyperGuest shall make reasonable efforts to identify the cause of such Security Breach and take those steps as necessary and reasonable, and which are acceptable to Customer, in order to remediate the cause of such Security Breach to the extent remediation is within HyperGuest’ reasonable control. The obligations herein shall not apply to incidents that are caused by Customer.

3.5 No acknowledgement

The Customer agrees that HyperGuest’ obligation to notify the Security Breach is not and will not be construed as an acknowledgment by HyperGuest of any fault or liability of HyperGuest with respect to such Security Breach.

3.6 Data Returns and Deletion

Subject to limitations set out in applicable laws, HyperGuest shall return to Customer all persistent Personal Data (if not already deleted in accordance with applicable law) following standardised procedures and within commercially reasonable deadlines.

3.7 HyperGuest Compliance

HyperGuest shall comply with the Data Protection Legislation applicable to its own operations and provision of the Services under the Agreement and its obligations under this Addendum.

3.8 Data Sharing

By enabling or accepting data sharing within HyperGuest with any third party the Customer instructs HyperGuest pursuant to Art. 28 (3)a) GDPR to provide access to all Personal Data and any other data processed within Customer’s account within the Platform to such third party. The Customer is responsible for obtaining all necessary consents of the Data Subjects or any other third parties with the data sharing as required by the applicable Data Protection Legislation. The Customer will fully indemnify, defend and hold harmless HyperGuest and its Affiliates from and against any claims brought Data Subject or any third party, arising out of the violation of this clause, including for all liabilities, damages, losses, cost and expenses.

3.9 Integrations

the Platform offers several integrations. By connecting or subscribing to the respective integration via the Customer’s account within the Platform the Customer instructs HyperGuest pursuant to Art. 28 (3)a) GDPR to provide access to Personal Data processed within Customer’s Customer’s account within the Platform to the respective integration Customer as required for the interoperation of the integration Customer services or product with HyperGuest Services.

3.10 Audit

The Customer shall have the right to conduct an audit to verify HyperGuest’ compliance with its obligations laid down in Art. 28 GDPR and in this Addendum. HyperGuest shall allow the Customer to carry out the audit under the following conditions:

the Customer asks HyperGuest to carry out the audit via a written notice at least 30 (thirty) days in advance;
the Customer will specify the agenda for such audit in the notification under (i);
the audit shall not take place more than once a year;
all associated costs and expenses shall be borne by the Customer and reimbursed to HyperGuest on demand; and
the audit shall last no longer than the equivalent of 1 working day (8 hours) of the HyperGuest representative.

In case the Customer requests the audit via third independent party – external licensed auditor, HyperGuest may object to an external licensed auditor appointed by the Customer to conduct the audit if the auditor is, in HyperGuest’ reasonable opinion, not suitably qualified or independent, a competitor of HyperGuest, or otherwise manifestly unsuitable. Any such objection will require Customer to appoint another auditor. In case the Customer requires more than one audit within one calendar year, the Customer shall obtain prior written permission of HyperGuest and shall bear the cost associated with such audits and reimburse HyperGuest all reasonably incurred costs of such audits. On the request of the Customer, HyperGuest will provide the Customer with the estimated cost that it expects to incur during such audit according to the extent specified in the agenda provided by the Customer.

4. Customer’s processing

4.1 Customer’s Processing of Personal Data

Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Legislation. For the avoidance of doubt, Customer warrants that its instructions for the Processing of Personal Data shall comply with Data Protection Legislation and that it shall not make any instruction or order which directs HyperGuestto take any action or course of action which is unlawful or otherwise not in compliance with Data Protection Legislation. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.

4.2 Customer’s Compliance

In addition to Customer’s obligations stated in the Agreement, Customer is responsible for (i) integrity, security, maintenance and appropriate protection of Personal Data, and (ii) ensuring its compliance with any applicable privacy, data protection and security law and regulation relative to: (a) its Processing of the Personal Data; (b) its use of the Services; and (c) any and all data Processing registration or notification requirements to which Customer is subject under the applicable law.

4.3 Notifications

Customer agrees to make any required notifications to, and obtain required consents and rights from, individuals in relation to HyperGuest’ provision of any Services to Customer. Where HyperGuest receives a communication described at Sub-section 3.4.1 or 3.4.3 and notifies Customer of such communication, it is Customer’s responsibility to respond to and take all other appropriate action with regard to the communication. Customer agrees to immediately notify HyperGuest of any unauthorized use of the Services or Customer’s account or of any other breach of security involving the Services.

4.4 Technical and organizational measures

Customer is solely responsible for implementing and maintaining security measures and other technical and organizational measures appropriate to the nature and volume of Personal Data that Customer stores or otherwise Processes using the Services. Customer is also responsible for the use of the Services by any of its employees, any person Customer authorizes to access or use the Services, and any person who gains access to its Personal Data or the Services as a result of its failure to use reasonable security precautions, even if such use was not authorized by Customer.

5. Cooperation

5.1 Customer and HyperGuest cooperation

Customer and HyperGuest agree to cooperate in a commercially reasonable fashion as reasonably required to protect the Personal Data under applicable laws, article 35 and 36 of the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to HyperGuest. Customer must cooperate with HyperGuest’ reasonable investigation of the Service outages, security problems, and any suspected Security Breach. Customer shall provide reasonable assistance to HyperGuest in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relation to this Section, to the extent required under the GDPR or applicable law.

5.2 HyperGuest’ Assistance with Customer’s Compliance Requirements

During the term of Customer’s Agreement with HyperGuest, Customer may request that HyperGuest assists Customer’s efforts to comply with Customer’s obligations under an applicable data protection or privacy law and regulations provided (i) such requested assistance is relevant to Services that support the Processing of Personal Data, (ii) such requested assistance is commercially reasonable and proportionate to the objective of the exercise with which HyperGuest is requested to assist, and (iii) if HyperGuest Systems agrees to so assist, that all of its associated costs and expenses (including the cost of its staff’s time) shall be borne by the Customer and reimbursed to HyperGuest on demand.

6. Sub-processing

6.1 third parties or sub-contracting the Processing of Personal Data

In relation to third parties or sub-contracting the Processing of Personal Data, HyperGuest may only authorise a third party (Sub-processor) to Process the Personal Data with the prior consent of the Customer and provided that provisions relating to data processing and data protection in the Sub-processor’s contract with respect to the Personal Data is on terms which are substantially the same as those set out in this Addendum provided that the sub-processor’s contract with respect to the Personal Data terminates automatically on termination of the Agreement for any reason. For the purpose hereof the following persons are approved by the Customer by signing this Addendum: (i) Sub-processors listed in Schedule No. 2 hereof, (ii) HyperGuest’ Affiliates and (iii) any Sub-processor authorised by Customer via its Authorised User by authorizing an integration with HyperGuest Services via Customer’s account within the Platform or otherwise. HyperGuest may during the term of the agreement involve new Sub-processors in Processing, provided that such Sub-processors only access and use Personal Data to the extent required to perform obligations subcontracted to it.

6.2 Objection Right for New Sub-processors

The Customer may object to HyperGuest’s use of a new Sub-processor by notifying HyperGuest promptly in writing within ten (10) business days after receipt of HyperGuest’ notice and specifying the deficiencies. In the event Customer objects to a new Sub-processor, HyperGuest will effort to add additional safeguards (covering the specified deficiencies) or change the Sub-processor (vis a vis the Sub-processor); should HyperGuest Systems be unable to do so, HyperGuest will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening Customer. If HyperGuest is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate only those part of Services which cannot be provided by HyperGuest without the use of the objected-to new Sub-processor by providing written notice to HyperGuest. HyperGuest will refund Customer any prepaid fees covering the remainder of the term of Agreement following the effective date of termination with respect to such terminated part of Services, which shall represent the sole and exclusive remedy of the Customer in connection with introduction of new Sub-processor.

6.3 Liability

HyperGuest shall be liable for the acts and omissions of its Sub-processors to the same extent HyperGuest would be liable if performing the services of each Sub-processor directly under the terms of this Addendum except as otherwise set forth in the Agreement.

7. Data transfer

7.1 Data Transfer

The Parties agree that Personal Data may be transferred from the European Union/European Economic Area to a third country, only if one of the following conditions applies: (a) there is an applicable decision of the European Commission that states that the third country ensures an adequate level of protection; or (b) the transfer may take place because HyperGuest has provided appropriate safeguards according to the Art. 46 of the GDPR, and on condition that enforceable data subject rights and effective legal remedies for Data Subjects are available; or (c) the derogations for specific situation under the Art. 49 of the GDPR apply. For the purpose of Art. 7.1 of this Addendum, the Standard Contractual Clauses, which constitute Schedule No. 1 (Standard Contractual Clauses) to this Addendum are considered as appropriate safeguards. Customer hereby authorises HyperGuest to enter into the Standard Contractual Clauses in order to transfer Personal Data to third countries.

7.2 Standard contractual clauses

To enable data transfer from/to third countries to/from European Union/European Economic Area, the Standard Contractual Clauses (Schedule No. 1 to this Addendum) are hereby incorporated into this Addendum and shall form as inseparable part of hereof.

8. Communication

Customer agrees that any Authorized User of Customer may be contacted and shall be entitled to receive any communication in relation to this Addendum.

9. CCPA

9.1 HyperGuest acts as a Service Provider

HyperGuest acknowledges that it acts as a Service Provider in respect of any Customer Personal Information processed by it hereunder.

9.2 HyperGuest Commitment

Unless prescribed by applicable law or expressly agreed between the Parties, HyperGuest shall not:

sell Customer Personal Information;
retain, use, or disclose Customer Personal Information for any purpose other than the specific purpose of performing the Services in accordance with the Agreement;
retain, use, or disclose Customer Personal Information for a commercial purpose other than specified in the Agreement; or
retain, use, or disclose the Customer Personal Information outside of the direct business relationship between HyperGuest and Customer.

9.3 Compliance

HyperGuest certifies that it understands and will comply with the responsibilities and restrictions imposed by this Addendum, the CCPA and other applicable data protection laws and regulations.

9.4 Definitions In this Clause 9

“CCPA” means the California Consumer Privacy Act, California Civil Code §§1798.100 et seq., including any amendments and implementing regulations that become effective on or after the effective date of this Addendum; and
“Customer Personal Information” means any Customer data that comprises “personal information” as defined in the CCPA;
“Service Provider” has the meaning set forth in Section 1798.140(v) of the CCPA.

10. Special clauses for US market

10.1 Applicable only for the United States of America

This Clause 10 applies only if the contracting Party to the Agreement is HyperGuest with its registered seat in the United States of America.

10.2 COPPA

Protecting the privacy of children is especially important. The Children’s Online Privacy and Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children in the United States of America who are under 13. HyperGuest respects the role of parents or guardians in the monitoring of their children’s online activities. Accordingly, HyperGuest limits its collection of personal information from children to no more than is reasonably necessary to participate in the Services and to improve it going forward. HyperGuest does not collect any Personal Data from children other than as set out in the Agreement. HyperGuest reserves the right to refuse to Process data supplied by Customer that is in violation of this Clause 10.2.

10.3 Third Party Use of Customer data

Unless otherwise agreed all data provided to HyperGuest by Customer is Confidential Information and HyperGuest will not use any data for any other purposes than to exercise its rights and perform its obligations in connection with conducting of the Services. Customer acknowledges that in order to properly carry out the Services, information given to HyperGuest by Customer will be made available to third parties in order to enable the performance of the Services. Customer acknowledges that such third parties are not representatives of HyperGuest and HyperGuest is not responsible for the acts and omissions of those third parties. HyperGuest requires third parties to which any Customer Personal Data is made available to apply the same level of privacy protection as set forth in this Addendum and as required by applicable laws. The manner in which any Customer data may be used is covered by the HyperGuest privacy policy, found at https://HyperGuest Systems.com/privacy-policy/.

11. Final provisions

11.1 Third Party Beneficiaries

Data Subjects are the sole third party beneficiaries to the Standard Contractual Clauses, and there are no other third party beneficiaries to the Agreement and this Addendum. Notwithstanding the foregoing, the Agreement and the terms of this Addendum apply only to the parties and do not confer any rights to any Customer’s affiliate, Customer’s end user or any third-party Data Subjects.

11.2 Governing Law

Nothing in this Addendum amends the Applicable Law section of the Agreement, which shall, for the avoidance of doubt, govern all claims brought under the Agreement and this Addendum. To the extent the Standard Contractual Clauses are applicable and to the extent a Data Subject brings a claim pursuant to clause 3.2 of the Standard Contractual Clauses in relation to the processing by HyperGuest of Personal Data, the Standard Contractual Clauses are to be governed by and construed in accordance with the Clause 9 (Governing Law) of the Standard Contractual Clauses.

11.3 Limitation of Liability

Customer’s remedies, including those of its Affiliates, and HyperGuest’ liability, arising out of or related to this Addendum and the Standard Contractual Clauses will be subject to those limitations of liability and disclaimers as set forth under the Agreement or if there are no limitations of liability stipulated in the Agreement, the Parties agree and declare that the total damage which may arise out of the breach of this Addendum and / or the Standard Contractual Clauses shall not exceed ten thousand euro.

11.4 Term

Following the termination of the Agreement, this Addendum will continue to be in effect until HyperGuest ceases to process Personal Data on behalf of the Customer.

11.5 Termination

HyperGuest may terminate this Addendum if HyperGuest offers alternative mechanisms to Customer that comply with the obligations of the applicable data privacy laws.

11.6 Counterparts

This Addendum may be signed in multiple counterparts, which taken together will be considered one original.