Last updated: March 7th, 2020
This Data Processing Addendum (“Addendum”) forms an integral part of the Platform Agreement available at:
(hereinafter: “PA”) or any other agreement (PA 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.
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 PA.
“Affiliate(s)” means any person or entity which, directly or indirectly, is in control of, is controlled by, or is under common control with such entity; for the purpose of this definition, “control” of an entity means the power, directly or indirectly, to either: (a) vote 10% or more of the securities having ordinary voting power for the election of directors of such entity; or (b) direct or cause the direction of the management and policies of such entity whether by contract or otherwise;
“Authorised User” means a person authorised by Customer to have access to HyperGuest Platform and/or HyperGuest Account and to provide instructions to and receive communication from HyperGuest, notwithstanding whether via HyperGuest Platform, HyperGuest Account, 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 EU Commission Decision of 5 February 2010 (2010/87/EC), as set out in Schedule No. 1 hereof;
“Supervisory Authority” means an independent public authority which is established by an EU Member State, U.S. or other country pursuant to the GDPR, EU-U.S. Privacy Shield Framework 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’ processing
3.1 HyperGuest’s 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 lawful 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.
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.
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 which results in unauthorized access to Customer 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’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer.
3.5 No acknowledgement
The Customer agrees that HyperGuest’s 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 Customer 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.
The Customer shall have the right to conduct an audit to verify HyperGuest’s 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:
(i) the Customer asks HyperGuest to carry out the audit via a written notice at least 30 (thirty) days in advance;
(ii) the Customer will specify the agenda for such audit in the notification under (i);
(iii) the audit shall not take place more than once a year;
(iv) all associated costs and expenses shall be borne by the Customer and reimbursed to HyperGuest on demand; and
(v) 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’s 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 HyperGuest to 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.
Customer agrees to make any required notifications to, and obtain required consents and rights from, individuals in relation to HyperGuest’s 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.
5.1 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 and the EU-U.S. Privacy Shield Framework 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’s 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’s 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 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 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.
6.1 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’s Affiliates and (iii) any Sub-processor authorised by Customer via its Authorised User by authorizing an integration with HyperGuest Services via HyperGuest Account 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’s 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 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.
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.
8.1 Customer agrees that any Authorised User of Customer may be contacted and shall be entitled to receive any communication in relation to this Addendum.
9. Final provisions
9.1 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.
9.2 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.
9.3 Limitation of Liability
Customer’s remedies, including those of its Affiliates, and HyperGuest’s 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.
This Addendum is concluded for the period equal to the term of the Agreement. This Addendum will terminate contemporaneously and automatically with the termination of the Agreement.
HyperGuest may terminate this Addendum if HyperGuest offers alternative mechanisms to Customer that comply with the obligations of the applicable data privacy laws.
This Addendum may be signed in multiple counterparts, which taken together will be considered one original.
Schedule No. 1 Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The Customer entity that is a party to the Addendum to which these Standard Contractual Clauses are attached.
Name of the data exporting organisation:
Tel. …; fax …; e-mail: …
Other information needed to identify the organisation
(the data exporter)
Name of the data importing organisation: …
Tel. …; fax …; e-mail: …
Other information needed to identify the organisation:
(the data importer or data subprocessor (as applicable))
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
- ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- ‘the data exporter’ means the controller who transfers the personal data;
- ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- ‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and (j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the Data Exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
On behalf of data exporter:
Name (written out in full):
Other information necessary in order for the contract to be binding (if any):
(stamp of organisation)
On behalf of data importer:
Name (written out in full):
Other information necessary in order for the contract to be binding (if any):
(stamp of organisation)
Appendix 1 to the standard contractual clauses
a. Data exporter
The data exporter is HyperGuest, a provider of Services as specified in the Agreement (if applicable).
b. Data importer
The data importer is the entity (a sub-processor) that receives Personal Data outside the EEA and provides certain services to HyperGuest in connection with Services to the Customer.
c. Data subjects
The personal data transferred may concern individuals about whom personal data is transmitted or stored by data exporter via the HyperGuest hosted system and/or services, which typically include individuals (Guests or prospects) using Customer’s services.
d. Categories of data
The personal data transferred concerns the following categories of data: Guests’ 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) in electronic form that is transferred to data importer in the context of HyperGuest’s Services (provided by the relevant sub-processor/importer)
e. Processing operations
The personal data transferred will be subject to the following basic processing activities:
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.
Customer must use reasonable security precautions in connection with its use of the services, including appropriately encrypting any personal data stored on or transmitted by the hosted system.
Appendix 2 to the standard contractual clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Data importer shall implement security measures equivalent to those required under the Agreement, the Addendum and any ancillary documents entered into pursuant to the Agreement.