This GDPR Data Protection Addendum ("Addendum"), addressing Article 28 of the GDPR (Processor terms) and incorporating Standard Contractual Clauses, forms part of the Saas Services Agreement and Terms and Conditions ("Principal Agreement") between: (i) Trip Ninja Inc. ("Trip Ninja") acting on its own behalf and as agent for each Trip Ninja Affiliate; and (ii) you, an individual or legal entity accessing the Trip Ninja Site and/or using the Trip Ninja Products and/or Services ("Customer"), acting on your/its own behalf and as agent for each Customer Affiliate.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.
1.1 In this Addendum, the following terms shall have the meanings set out below and related terms shall be construed accordingly:
1.1.1 "Applicable Laws" means (a) European Union or Member State laws with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to any other Data Protection Laws;
1.1.2 "Customer Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.1.3 "Customer Group Member" means Customer or any Customer Affiliate;
1.1.4 "Customer Personal Data" means any Personal Data processed by a Contracted Processor on behalf of a Customer Group Member pursuant to or in connection with the Principal Agreement;
1.1.5 "Contracted Processor" means Trip Ninja or a Subprocessor;
1.1.6 "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.7 "EEA" means the European Economic Area;
1.1.8 "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.9 "GDPR" means EU General Data Protection Regulation 2016/679;
1.1.10 "Restricted Transfer" means:
188.8.131.52 a transfer of Customer Personal Data from any Customer Group Member to a Contracted Processor; or
184.108.40.206 an onward transfer of Customer Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 12 below;
1.1.11 "Services" means the services and other activities to be supplied to or carried out by or on behalf of Trip Ninja for Customer Group Members pursuant to the Principal Agreement;
1.1.12 "Standard Contractual Clauses" means the contractual clauses set out in Annex 2 amended as indicated (in square brackets and italics) in that Annex and under section 13.4;
1.1.13 "Subprocessor" means any person (including any third party and any Trip Ninja Affiliate, but excluding an employee of Trip Ninja or any of its sub-contractors) appointed by or on behalf of Trip Ninja or any Trip Ninja Affiliate to Process Personal Data on behalf of any Customer Group Member in connection with the Principal Agreement;
1.1.14 "Trip Ninja Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Trip Ninja, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise; and
1.2 The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their related terms shall be construed accordingly.
1.3 The word "include" shall be construed to mean include without limitation, and related terms shall be construed accordingly.
Trip Ninja warrants and represents that, before any Trip Ninja Affiliate Processes any Customer Personal Data on behalf of any Customer Group Member, Trip Ninja's entry into this Addendum as agent for and on behalf of that Trip Ninja Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Trip Ninja Affiliate.
3.1 Trip Ninja and each Trip Ninja Affiliate shall:
3.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
3.1.2 not Process Customer Personal Data other than on the relevant Customer Group Member’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Trip Ninja or the relevant Trip Ninja Affiliate shall to the extent permitted by Applicable Laws inform the relevant Customer Group Member of that legal requirement before the relevant Processing of that Personal Data.
3.2 Each Customer Group Member:
3.2 Each Customer Group Member:
3.2.1 instructs Trip Ninja and each Trip Ninja Affiliate (and authorises Trip Ninja and each Trip Ninja Affiliate to instruct each Subprocessor) to:
220.127.116.11 Process Customer Personal Data; and
18.104.22.168 in particular, transfer Customer Personal Data to any country or territory,
as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
3.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 3.2.1 on behalf of each relevant Customer Affiliate.
3.3 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of the Customer Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to Trip Ninja from time to time as Customer reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Addendum.
Trip Ninja and each Trip Ninja Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
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, Trip Ninja and each Trip Ninja Affiliate shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, as more particularly set out in the Principal Agreement.
5.2 In assessing the appropriate level of security, Trip Ninja and each Trip Ninja Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6.1 Each Customer Group Member authorises Trip Ninja and each Trip Ninja Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Principal Agreement.
6.2 Trip Ninja and each Trip Ninja Affiliate may continue to use those Subprocessors already engaged by Trip Ninja or any Trip Ninja Affiliate as at the date of this Addendum, subject to Trip Ninja and each Trip Ninja Affiliate in each case as soon as practicable meeting the obligations set out in section 6.4.
6.3 Trip Ninja shall give Customer prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within thirty (30) days of receipt of that notice, Customer notifies Trip Ninja in writing of any objections (on reasonable grounds) to the proposed appointment:
Neither Trip Ninja nor any Trip Ninja Affiliate shall appoint (or disclose any Customer Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by any Customer Group Member and Customer has been provided with a reasonable written explanation of the steps taken.
6.4 With respect to each Subprocessor, Trip Ninja or the relevant Trip Ninja Affiliate shall:
6.4.1 before the Subprocessor first Processes Customer Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Customer Personal Data required by the Principal Agreement;
6.4.2 ensure that the arrangement between on the one hand (a) Trip Ninja, or (b) the relevant Trip Ninja Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR; and
6.4.3 provide to Customer for review such copies of the Contracted Processors' agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Customer may request from time to time.
6.5 Trip Ninja and each Trip Ninja Affiliate shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Customer Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Trip Ninja.
7.1 Taking into account the nature of the Processing, Trip Ninja and each Trip Ninja Affiliate shall assist each Customer Group Member by implementing appropriate technical and organizational measures, as may be outlined in the Principal Agreement, and insofar as this is possible, for the fulfilment of the Customer Group Members' obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2 Trip Ninja shall:
7.2.1 promptly notify Customer if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
7.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of Customer or the relevant Customer Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Trip Ninja shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request.
8.1 Trip Ninja shall notify Customer without undue delay upon Trip Ninja or any Subprocessor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow each Customer Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 Trip Ninja shall co-operate with Customer and each Customer Group Member and take such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Trip Ninja and each Trip Ninja Affiliate shall provide reasonable assistance to each Customer Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of any Customer Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10.1 Subject to sections 10.2 and 10.3 Trip Ninja and each Trip Ninja Affiliate shall promptly and in any event within sixty (60) days of the date of cessation of any Services involving the Processing of Customer Personal Data (the "Cessation Date"), return all Customer Personal Data to the Customer.
10.2 Subject to section 10.3, Customer may in its absolute discretion by written notice to Trip Ninja within 30 days of the Cessation Date require Trip Ninja and each Trip Ninja Affiliate to (a) return a complete copy of all Customer Personal Data to Customer by secure file transfer in such format as is reasonably notified by Customer to Trip Ninja; and (b) delete and procure the deletion of all other copies of Customer Personal Data Processed by any Contracted Processor. Trip Ninja and each Trip Ninja Affiliate shall comply with any such written request within sixty (60) days of the Cessation Date.
10.3 Each Contracted Processor may retain Customer Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Trip Ninja and each Trip Ninja Affiliate shall ensure the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
10.4 Trip Ninja shall provide written certification to Customer that it and each Trip Ninja Affiliate has fully complied with this section 10 within sixty (60) days of the Cessation Date.
11.1 Subject to sections 11.2 and 11.3, Trip Ninja and each Trip Ninja Affiliate shall make available to each Customer Group Member on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by any Customer Group Member or an auditor mandated by any Customer Group Member in relation to the Processing of the Customer Personal Data by the Contracted Processors.
11.2 Information and audit rights of the Customer Group Members only arise under section 11.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
11.3 Trip Ninja shall immediately inform Customer if, in its opinion, an instruction pursuant to this section 11 (Audit Rights) infringes the GDPR or other EU data protection provisions.
12.1 Subject to section 12.3, each Customer Group Member (as "data exporter") and each Contracted Processor, as appropriate, (as "data importer") hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Customer Group Member to that Contracted Processor.
12.2 The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:
12.2.1 the data exporter becoming a party to them;
12.2.2 the data importer becoming a party to them; and
12.2.3 commencement of the relevant Restricted Transfer.
12.2.3 Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
Governing law and jurisdiction
13.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
13.1.1 the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
13.1.2 this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
Order of precedence
13.2 Nothing in this Addendum reduces Trip Ninja's or any Trip Ninja Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Trip Ninja or any Trip Ninja Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
13.3 Subject to section 13.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
Changes in Data Protection Laws, etc.
13.4 Customer may:
13.4.1 by at least 30 (thirty) calendar days' written notice to Trip Ninja from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
13.4.2 propose any other variations to this Addendum which Customer reasonably considers to be necessary to address the requirements of any Data Protection Law.
13.5 If Customer gives notice under section 13.4.1:
13.5.1 Customer shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by Trip Ninja to protect the Contracted Processors against additional risks associated with the variations made under section 13.4.1.
13.6 If Customer gives notice under section 13.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer's notice as soon as is reasonably practicable.
13.7 Neither Customer nor Trip Ninja shall require the consent or approval of any Customer Affiliate or Trip Ninja Affiliate to amend this Addendum pursuant to this section 13.5 or otherwise.
13.8 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
This Annex 1 includes certain details of the processing of Customer Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the processing of Customer Personal Data
The subject matter and duration of the processing of the Customer Personal Data are as set out in the Principal Agreement.
The nature and purpose of the processing of Customer Personal Data
The nature and purpose of the processing of the Customer Personal Data are as set out in the Principal Agreement.
The types of Customer Personal Data to be processed
The types of Customer Personal Data to be processed are as set out in the Principal Agreement.
The categories of Data Subject to whom the Customer Personal Data relates
The categories of Data Subjects to whom the Customer Personal Data relate are as determined by the Customer, and as set out in the Principal Agreement.
The obligations and rights of Customer and Customer Affiliates
The obligations and rights of Customer and Customer Affiliates are as set out in the Principal Agreement.
These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law (otherwise).
Standard Contractual Clauses (processors)
Trip Ninja Inc. ("Trip Ninja") acting on its own behalf and as agent for each Trip Ninja Affiliate (the “data importer”);
and (ii) you, an individual or legal entity accessing the Trip Ninja Site and/or using the Trip Ninja Products and/or Services ("Customer") acting on your/its own behalf and as agent for each Customer Affiliate (the “data exporter”),
each a “party”; together “the parties”,
HEREBY AGREE 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 the Principal Agreement between the parties.
The data exporter has entered into a GDPR Data Protection Addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer, as more particularly set out in the Principal Agreement (the “Services”). Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.
Details of the transfer
The details of the transfer and in the categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
Obligations of the data exporter
The data exporter agrees and warrants:
Obligations of the data importer
The data importer agrees and warrants:
Mediation and jurisdiction
The data exporter agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data exporter will accept the decision of the data subject:
Cooperation with supervisory authorities
The Clauses shall be governed by the law of the jurisdiction in which the data importer 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.
Obligation after the termination of personal data processing services
This Appendix forms an integral part of the Clauses
The data exporter is the Customer.
The data importer is Trip Ninja Inc.
The personal data transferred concerns the categories of data subjects as set out in the Principal Agreement.
Categories of data
The personal data transferred concerns the categories of data as set out in the Principal Agreement.
The personal data transferred will be subject to the processing activities as set out in the Principal Agreement.
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):
The technical and organizational security measures implemented by the data importer are as outlined in the Principal Agreement.
This GDPR Processor Addendum last updated on 22 August 2022.