Data Processing Addendum
Last Updated: 2 May 2024
This Data Processing Addendum (“Addendum”) forms part of the Dtravel Terms and Conditions and Privacy Policy (“Dtravel Terms”) between Newstart Services, with its registered address at 2nd Floor, Harbour Place, 103 South Church Street, P.O. Box 472, George Town, Grand Cayman, KY1-1106, Cayman Islands ("Newstart", “us”, “we” or “our”) and you as the “Operator” (as defined in the Dtravel Terms).
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 Dtravel Terms. Except as modified below, the Dtravel Terms shall remain in full force and effect.
1. Definitions
1.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
Applicable Laws means:
(a) European Union or Member State laws applying to Personal Data;
(b) United Kingdom laws applying to Personal Data;
(c) legislation in applicable to the Services, including regulations, by-laws, declarations, ministerial directions and other subordinate legislation;
(d) common law; and
(e) Government Agency requirement or authorisation (including conditions in respect of any authorisation).
Contracted Processor means us or a Subprocessor.
Data Protection Laws includes
(a) 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;
(b) the Data Protection Act 2018 (UK), and the Data Protection, and Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (UK); and
(c) the Privacy Act 1988 (Cth).
Delete means to remove or obliterate Personal Data such that it cannot be recovered or reconstructed.
EEA means the European Economic Area.
Personal Data means any information relating to an identified or identifiable natural person which is provided to you by Guest or users of your Domain (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Restricted Transfer means:
(a) a transfer of Personal Data from you to a Contracted Processor; or
(b) an onward transfer of 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 clause 12 below.
Services means the services and other activities to be supplied to or carried out by or on behalf of us for you pursuant to the Dtravel Terms.
Standard Contractual Clauses means:
(a) in the case Personal Data where the processing relates to offering of goods or services (irrespective of whether a payment of the Data Subjects is required) to Data Subjects in the EEA; or
(b) or monitoring of Data Subjects behaviour as far as their behaviour takes place within the EEA;
the contractual clauses adopted by the European Commission from time to time pursuant to GDPR art 46(2)(c), and amended as indicated (in square brackets and italics) in those contractual clauses adopted by Operator and Newstart under clause 12.4; and(c) in the case of Personal Data where the processing related to offering of goods or services (irrespective of whether a payment of the data subject is required) to data subjects in the United Kingdom; or
(d) monitoring of Data Subjects’ behaviour as far as their behaviour takes place within the United Kingdom:
the contractual clauses adopted pursuant to the Data Protection Laws for the purposes of providing appropriate safeguards for third-country transfers from time to time, and amended as indicated (in square brackets and italics) in those contractual clauses adopted by Operator and Newstart and under clause 12.4.
Subprocessor means any person (including any third party, but excluding an employee of ours) appointed by or on behalf of us to Process Personal Data on behalf of you in connection with the Dtravel Terms.
Operator Personal Data means any Personal Data Processed by a Contracted Processor on behalf of you pursuant to or in connection with the Dtravel Terms.
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 cognate terms shall be construed accordingly.
2. Processing of Operator Personal Data
2.1 In consideration of the mutual obligations in this agreement, the parties agree that the terms and conditions of this agreement shall be added as an Addendum to the Dtravel Terms. Except where the context requires otherwise, references in this Addendum to the Dtravel Terms are to the Dtravel Terms as amended by, and including, this Addendum.
2.2 We shall:
(a) comply with all applicable Data Protection Laws in the Processing of Operator Personal Data; and
(b) not Process Operator Personal Data other than on the relevant Operator’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case we shall to the extent permitted by Applicable Laws inform the relevant Operator of that legal requirement before the relevant Processing of that Personal Data.
2.3 Operator:
(a) instructs us (and authorises us to instruct each Subprocessor) to:
(i) Process Operator Personal Data; and
(ii) in particular, transfer Operator Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Dtravel Terms; and
(b) warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in clause (a) on behalf of each relevant Operator Affiliate.
2.4 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ processing of Operator Personal Data as required by article 28(3) of the GDPR (and equivalent requirements of other Data Protection Laws including the UK GDPR). We may make reasonable amendments to Annex 1 by written notice to you from time to time as we reasonably consider necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this clause 3.3) confers any right or imposes any obligation on any party to this Addendum.
3. Our personel
3.1 We shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to Operator Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Operator Personal Data, as strictly necessary for the purposes of the Dtravel Terms, 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.
4. Security
4.1 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, we shall in relation to Operator Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2 In assessing the appropriate level of security, we shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5. Subprocessing
5.1 Operator authorises us to appoint (and permit each Subprocessor appointed in accordance with this clause 5 to appoint) Subprocessors in accordance with this clause 6 and any restrictions in the Dtravel Terms.
5.2 We may continue to use those Subprocessors already engaged by us as at the date of this Addendum, subject to us in each case as soon as practicable meeting the obligations set out in clause 5.3.
5.3 If we appoint a new Subprocessor or intend to make changes concerning the addition or replacement of subprocessors, such changes will be notified to you. You will have seven (7) days from the date of the notification to object to the change. If you object to the appointment of a Subprocessor, you may terminate the Dtravel Terms by notifying us at dpo@dtravel.com.
5.4 With respect to each Subprocessor, we shall:
(a) before the Subprocessor first Processes Operator Personal Data (or, where relevant, in accordance with clause 5.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Operator Personal Data required by the Dtravel Terms;
(b) ensure that the arrangement between Newstart, or the relevant intermediate Subprocessor, and the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Operator Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;
(c) if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between us, or the relevant intermediate Subprocessor; and the Subprocessor, or before the Subprocessor first Processes Operator Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with Operator; and
(d) provide to Operator 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 Operator may request from time to time.
5.5 We shall ensure that each Subprocessor performs the obligations under clauses 3.1, 4, 5, 7, 8, 9 and 11 as they apply to Processing of Operator Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of us.
6. Data Subject Rights
6.1 Taking into account the nature of the Processing, we shall assist Operator by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Operator’s obligations, as reasonably understood by Operator, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 We shall:
(a) promptly notify Operator if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Operator Personal Data; and
(b) ensure that the Contracted Processor does not respond to that request except on the documented instructions of Operator or as required by Applicable Laws to which the Contracted Processor is subject, in which case we shall to the extent permitted by Applicable Laws inform Operator of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
7.1 We shall notify Operator without undue delay upon us or any Subprocessor becoming aware of a Personal Data Breach affecting Operator Personal Data, providing you with sufficient information to allow you to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 We shall cooperate with you and you shall take such reasonable commercial steps as are directed to you to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
8.1 We shall provide reasonable assistance to Operator with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Operator reasonably considers to be required of Operator 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 Operator Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or return of Operator Personal Data
9.1 Subject to clauses 9.2 and 9.3, Newstart shall promptly and in any event within 28 days of the date of cessation of any Services involving the Processing of Operator Personal Data (Cessation Date) delete and procure the deletion of all copies of those Operator Personal Data.
9.2 Subject to clause 9.3, Operator may in its absolute discretion by written notice to us within seven days of the Cessation Date require us to
(a) return a complete copy of all Operator Personal Data to Operator by secure file transfer in such format as is reasonably notified by Operator to us; and
(b) delete and procure the deletion of all other copies of Operator Personal Data Processed by any Contracted Processor. We shall comply with any such written request within 28 days of the Cessation Date.
9.3 Each Contracted Processor may retain Operator 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 we shall ensure the confidentiality of all such Operator Personal Data and shall ensure that such Operator Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
9.4 We shall provide written certification to the Operator that it has fully complied with this clause 9 within 28 days of the Cessation Date.
10. Audit Rights
10.1 Subject to clauses 10.2 to 10.3, Newstart shall make available to Operator on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by Operator or an auditor mandated by Operator in relation to the Processing of Operator Personal Data by the Contracted Processors.
10.2 Information and audit rights of Operator only arise under clause 10.1 to the extent that the Dtravel Terms 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).
10.3 Operator shall give us reasonable notice of any audit or inspection to be conducted under clause 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors' premises, equipment, personnel, and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
(a) to any individual unless he or she produces reasonable evidence of identity and authority;
(b) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Operator has given notice to us that this is the case before attendance outside those hours begins; or
(c) for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which:
(i) Operator reasonably considers necessary because of genuine concerns as to our compliance with this Addendum; or
(ii) Operator is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory;
where the Operator has identified its concerns or the relevant requirement or request in its notice to us of the audit or inspection.
11. Restricted Transfers
11.1 Subject to clause 11.3, Operator (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 Operator to that Contracted Processor.
11.2 The Standard Contractual Clauses shall come into effect under clause 11.1 on the later of:
(a) the data exporter becoming a party to them;
(b) the data importer becoming a party to them; and
(c) commencement of the relevant Restricted Transfer.
11.3 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.
11.4 We warrant and represent that, before the commencement of any Restricted Transfer to a Subprocessor which is not our Affiliate, our entry into the Standard Contractual Clauses under clause 11.1, and agreement to variations to those Standard Contractual Clauses made under clause 12.4(a), as agent for and on behalf of that Subprocessor will have been duly and effectively authorised (or subsequently ratified) by that Subprocessor.
12. General Terms
12.1 Without prejudice to the provisions governing Mediation and Jurisdiction and Governing Law in the Standard Contractual Clauses:
(a) the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Dtravel Terms 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
(b) 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 Dtravel Terms.
12.2 Nothing in this Addendum reduces our obligations under the Dtravel Terms in relation to the protection of Personal Data or permits us to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Dtravel Terms. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
12.3 Subject to clause 12.2, 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 Dtravel Terms 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.
12.4 Operator may:
(a) by at least 28 days written notice to us from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under clause 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
(b) propose any other variations to this Addendum which Operator reasonably considers to be necessary to address the requirements of any Data Protection Law.
12.5 If Operator gives notice under clause 12.4(a), we shall promptly co-operate (and ensure that any affected Subprocessors promptly co-operate) to ensure that equivalent variations are made to any agreement put in place under clause 5.3.
12.6 If Operator gives notice under clause 12.4(b), 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 Operator's notice as soon as is reasonably practicable.
12.7 Neither Operator nor us shall require the consent or approval of Operator Affiliate or our Affiliate to amend this Addendum pursuant to this clause 12.7 or otherwise.
12.8 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.
ANNEX 1: DETAILS OF PROCESSING OPERATOR PERSONAL DATA
This Annex 1 includes certain details of the Processing of Operator Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Operator Personal Data:
The subject matter and duration of the Processing of Operator Personal Data are set out in the Dtravel Terms and this Addendum.
The nature and purpose of the Processing of Operator Personal Data:
Operator operates a Platform which enables users to do the following: build an independent Domain/website to offer property/s for short-term rental use. By using the Services provided by us, The Operator has subscribed to our services and agreed to the Dtravel Terms.
The types of Operator Personal Data to be Processed:
Name
Date of Birth
Address
Email address
Telephone number
Travel Itineraries
Payment Details
The categories of Data Subject to whom Operator Personal Data relates
The Data Subjects to whom Operator Personal Data relates are:
Operator, Guest and any other user of the Domain.
The obligations and rights of Operator
The obligations and rights of Operator are set out in the Dtravel Terms and this Addendum.
15. Contact Us
If you have any questions or concerns about the privacy aspects of our website or services or want to complain about an interference with your privacy by Dtravel, please email us at dpo@dtravel.com. We will do our best to resolve your complaint as quickly as possible.
You can also contact your local data protection authority to lodge a complaint.
If you are in the EU you can find your Data Protection Authority here.
If you are in the UK you can contact the Information Commissioner’s Office here.