Boats Group EU Data Processing Addendum
1. Additional Definitions
1.1 “Authorized Employee” means an employee of Processor who has a need to know or otherwise access Personal Data to enable Processor to perform their obligations under this Addendum or the Agreement.
1.2 “Authorized Individual” means an Authorized Employee or Authorized Subcontractor.
1.3 “Authorized Subcontractor” means a third-party subcontractor, agent, reseller, or auditor who has a need to know or otherwise access Personal Data to enable Processor to perform its obligations under this Addendum or the Agreement, and who is either (1) listed in Exhibit B or (2) authorized by Controller to do so under Section 4.2 of this Addendum.
1.4 “Instruction” means a direction, either in writing, in textual form (e.g. by e-mail) or by using a software or online tool, issued by Controller to Processor and directing Processor to Process Personal Data.
1.5 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored, or otherwise processed.
1.6 “Process” or “Processing” means any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
1.7 “Services” shall have the meaning set forth in the Agreement.
1.8 “Standard Contractual Clauses” means the standard contractual clauses for processors as approved by the European Commission, United Kingdom authorities or Swiss Federal Data Protection Authority (as applicable).
2. Processing of Data
2.1 The rights and obligations of the Controller with respect to this Processing are described herein. Controller shall, in its use of the Services, at all times Process Personal Data, and provide instructions for the Processing of Personal Data, in compliance with applicable Data Protection Legislation. Controller shall ensure that its instructions comply with all laws, rules and regulations applicable in relation to the Personal Data, and that the Processing of Personal Data in accordance with Controller’s instructions will not cause Processor to be in breach of applicable Data Protection Legislation. Controller is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Processor by or on behalf of Controller, (ii) the means by which Controller acquired any such Personal Data, and (iii) the instructions it provides to Processor regarding the Processing of such Personal Data. Controller shall not provide or make available to Processor any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Processor from all claims and losses in connection therewith. This Addendum does not apply to Personal Data for which Processor is a controller.
2.2 Processor shall Process Personal Data only (i) for the purposes set forth in the Agreement and/or Exhibit A, (ii) in accordance with the terms and conditions set forth in this Addendum and any other documented instructions provided by Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest and (iii) the General Data Protection Regulation, including applicable national implementations thereof in respect of the United Kingdom (collectively, the “GDPR”). Controller hereby instructs Processor to Process Personal Data in accordance with the foregoing and as part of any Processing initiated by Controller in its use of the Services.
2.3 The subject matter, nature, purpose, and duration of this Processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this Addendum.
2.4 Following completion of the Services, at Controller’s choice, Processor shall return or delete the Personal Data, except as required to be retained by the laws of the European Union or European Union member states. If return or destruction is impracticable or prohibited by law, rule or regulation, Processor shall take measures to block such Personal Data from any further Processing (except to the extent necessary for its continued hosting or Processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in the Standard Contractual Clauses shall be provided by Processor to Controller only upon Controller’s request.
3. Authorized Employees
3.1 Processor shall take commercially reasonable steps to ensure the reliability and appropriate training of any Authorized Employee.
3.2 Processor shall ensure that all Authorized Employees are made aware of the confidential nature of Personal Data and have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their engagement with Processor, any Personal Data except in accordance with their obligations in connection with the Services.
3.3 Processor shall take commercially reasonable steps to limit access to Personal Data to only Authorized Individuals.
4. Authorized Subcontractors
4.1 Controller acknowledges and agrees that Processor may (1) engage its affiliates and the Authorized Subcontractors listed in Exhibit B to this Addendum to access and Process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the Processing of Personal Data.
4.2 A list of Processor’s current Authorized Subcontractors (the “List”) is provided in Exhibit B. Processor shall notify Controller before engaging any third party other than Authorized Subcontractors to access or participate in the Processing of Personal Data. Controller may object to such an engagement in writing within ten (10) days of receipt of the aforementioned notice by Controller.
4.2.1 If Controller reasonably objects to an engagement in accordance with Section 4.2, Processor shall provide Controller with a written description of commercially reasonable alternative(s), if any, to such engagement, including without limitation modification to the Services. If Processor, in its sole discretion, cannot provide any such alternative(s), or if Controller does not agree to any such alternative(s) if provided, Processor may terminate this Addendum. Termination shall not relieve Controller of any fees owed to Processor under the Agreement.
4.2.2 If Controller does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Processor, that third party will be deemed an Authorized Subcontractor for the purposes of this Addendum.
4.3 Processor shall ensure that all Authorized Subcontractors have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their engagement by Processor, any Personal Data both during and after their engagement with Processor.
4.4 Processor shall, by way of contract or other legal act under European Union or European Union member state law (including without limitation approved codes of conduct and standard contractual clauses), ensure that every Authorized Subcontractor is subject to obligations regarding the Processing of Personal Data that are no less protective than those to which the Processor is subject under this Addendum.
4.5 Processor shall be liable to Controller for the acts and omissions of Authorized Subcontractors to the same extent that Processor would itself be liable under this Addendum had it conducted such acts or omissions.
4.6 If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Controller’s prior written consent to the subcontracting by Processor of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Subcontractors that must be provided by Processor to Controller pursuant to Clause 5(j) of the Standard Contractual Clauses may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Processor beforehand, and that such copies will be provided by the Processor only upon request by Controller.
5. Security of Personal Data
5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Processing Personal Data.
6. Transfers of Personal Data
6.1 If Processor transfers any Personal Data subject to this Addendum from member states of the European Union, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom to any countries which do not ensure an adequate level of data protection within the meaning of the laws and regulations of these countries shall, to the extent such transfer is subject to such laws and regulations, such transfer shall be undertaken by Processor through the appropriate Standard Contractual Clauses set forth and/or any applicable derogation(s).
7. Rights of Data Subjects
7.1 Processor shall, to the extent permitted by law, promptly notify Controller upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, restriction of Processing, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Processor receives a Data Subject Request in relation to Controller’s data, Processor will advise the Data Subject to submit their request to Controller and Controller will be responsible for responding to such request, including, where necessary, by using the functionality of the Services.
7.2 Processor shall, at the request of the Controller, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Controller in complying with Controller’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Controller is itself unable to respond without Processor’s assistance and (ii) Processor is able to do so in accordance with all applicable laws, rules, and regulations. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8. Actions and Access Requests
8.1 Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance where necessary for Controller to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Controller does not otherwise have access to the relevant information. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8.2 Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance with respect to Controller’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
8.3 Processor shall maintain records sufficient to demonstrate its compliance with its obligations under this Addendum, and retain such records for a period of three (3) years after the termination of the Agreement. Controller shall, with reasonable notice to Processor, have the right to review, audit and copy such records at Processor’s offices during regular business hours.
8.4 Upon Controller’s request, Processor shall, no more than once per calendar year, make available for Controller’s review copies of certifications or reports demonstrating Processor’s compliance with prevailing data security standards applicable to the Processing of Controller’s Personal Data. While it is the parties’ intention ordinarily to rely on the provision of the Report and written responses provided under Sections 8.4 to verify Processor’s compliance with this DPA, Processor shall permit the Controller (or its appointed third party auditors) to carry out an audit of Processor’s processing of Personal Data under the Agreement following a Security Incident suffered by Processor, or upon the instruction of a data protection authority as otherwise required by law. Controller must give Processor reasonable prior notice of such intention to audit, conduct its audit during normal business hours, and take all reasonable measures to prevent unnecessary disruption to Processor’s operations. Any such audit shall be subject to Processor’s security and confidentiality terms and guidelines. If Controller and Processor have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in the Standard Contractual Clauses shall be carried out in accordance with this Section 8.4.
8.5 Processor shall immediately notify Controller if an instruction, in the Processor’s opinion, infringes the Data Protection Laws or Supervisory Authority.
8.6 In the event of a Personal Data Breach, Processor shall, without undue delay, inform Controller of the Personal Data Breach and take such steps as Processor in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Processor’s reasonable control).
8.7 In the event of a Personal Data Breach, Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance necessary for Controller to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
8.8 The obligations described in Sections 8.5 and 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Controller. Processor’s obligation to report or respond to a Personal Data Breach under Sections 8.5 and 8.6 will not be construed as an acknowledgement by Processor of any fault or liability with respect to the Personal Data Breach.
9. Limitation of Liability
9.1 The total liability of each of Controller and Processor (and their respective employees, directors, officers, affiliates, successors, and assigns), arising out of or related to this Addendum, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement.
EXHIBIT A
Details of Processing
Nature and Purpose of Processing:
Boats Group will Process Personal Data as necessary to perform the Services pursuant to the Agreement, and as further instructed by Controller in its use of the Services.
Duration of Processing:
Boats Group will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Categories of Data Subjects:
Controller’s end users.
Type of Personal Data:
Controller may submit Personal Data to the Services, the extent of which is determined and controlled by the Controller in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
• First name
• Last name
• Email Address
• Username
• Postal Code
• Date of birth
• Mobile number
• Gender
• IP Address
EXHIBIT B
Authorized Subcontractors
Controller acknowledges and agrees that the following entities shall be deemed Authorized Subcontractors that may Process Personal Data pursuant to this Addendum:
Amazon Web Services, Inc.