Data Processing Agreement

Last updated: 16 December 2020

This Data Processing Agreement ("Agreement") including the Standard Contractual Clauses forms part of the Standard Terms and Conditions of Trading ("Principal Agreement") between you, the "Customer" (the "Data Controller") and TheYachtMarket.com Limited (the "Data Processor") (together as the "Parties").

RECITALS

The Data Controller shall provide the Data Processor with Personal Data during the period that the Data Processor has a contractual relationship with the Data Controller.
The Data Processor agrees to fulfil its data protection obligations under this agreement for as long as the Data Processor processes Personal Data on behalf of the Data Controller.

DEFINITIONS
1. "Data Controller" has the definition of the General Data Protection Regulation (GDPR) and all other data protection legislation that implements the GDPR in the United Kingdom.
2. "Data Processor" has the definition of the General Data Protection Regulation (GDPR) and all other data protection legislation that implements the GDPR in the United Kingdom.
3. "Personal Data" has the definition of the General Data Protection Regulation (GDPR) and all other data protection legislation that implements the GDPR in the United Kingdom.
4. "Sensitive Personal Data" is defined as the special categories of personal data as defined in the General Data Protection Regulation (GDPR) and all other data protection legislation that implements the GDPR in the United Kingdom.
SUBJECT MATTER OF DATA PROCESSING
1. The subject matter of the processing is Personal Data (excluding Sensitive Personal Data) provided by the Data Controller to the Data Processor so that the Data Processor can fulfil their contractual obligations to the Data Controller.
2. The type of Personal Data which may be processed is the names, addresses, email addresses, phone number and other personally identifiable information, of the Data Controller's clients, contractors, workers, employees or any other individual for which the Data Controller collects their Personal Data.
DATA PROTECTION OBLIGATIONS
1. The Data Processor will comply in all respects with its respective obligations under all applicable data protection laws of the European Union or United Kingdom in relation to the management or protection of Personal Data which is being processed on the terms of this Agreement.
2. The Data Processor will:
  1. use Personal Data only in so far as is necessary for the purpose of carrying out its obligations under the terms of this Agreement and any instructions from the Data Controller;
  2. not disclose Personal Data to any third party unless specifically and expressly authorised to do so by the Data Controller;
  3. to not sub-contract any rights or obligations under this Agreement without the prior written consent of the Data Controller;
  4. unless prohibited by law, notify the Data Controller immediately (and in any event within twenty-four (24) hours of becoming aware of the same) if it considers, in its reasonable opinion that it is required by any applicable data protection law to act other than in accordance with the instructions of the Data Controller;
  5. implement and maintain appropriate technical and organisational measures against unauthorised and unlawful processing of Personal Data and against accidental loss and destruction of or damage to Personal Data;
  6. comply with the Data Controller's Data Protection Policy and any rules or policies notified by the Data Controller in relation to processing Personal Data;
  7. not make (nor instruct or permit) a third party to make a data transfer to a country outside the EEA which is not the subject of an adequacy decision of the European Commission or has appropriate safeguards in place, without the prior written consent of the Data Controller;
  8. will provide the Data Controller with all reasonable co-operation and assistance required in relation to a data subject access request or ICO correspondence, meet its obligations with security requirements or undertake any data protection impact assessment;
  9. notify the Data Controller promptly (and in any event within twenty-four (24) hours) upon becoming aware of any actual or suspected or threatened Personal Data breach and:
    1. implement any measures necessary to restore the security of compromised Personal Data; and
    2. assist the Data Controller to make any notifications to the ICO and affected data subjects;
  10. except to the extent required by applicable data protection law, upon the termination of the contractual relationship between the Data Controller and the Data Processor, the Data Processor shall cease processing and return and/or permanently and securely destroy so that it is no longer retrievable (as directed in writing by the Data Controller) any Personal Data of the Data Controller in its possession or control;
  11. within thirty (30) calendar days of a request from the Data Controller allow its data processing facilities, procedures and documentation to be submitted for scrutiny, inspection or audit by Data Controller (and/ or its representatives, including its appointed auditors) in order to ascertain compliance with the terms of this clause 3 and provide reasonable information, assistance and co-operation to the Data Controller and/ or, on the request of the Data Controller provide the Data Controller with written evidence of its compliance with the requirements of this clause 3.
3. The Data Controller will inform the Data Processor as soon as reasonably practicable of the receipt of any request for information that may include information about the Data Processor and will, when required to do so under the terms of the Data Protection Act 1998 and all other applicable data protection legislation, request the Data Processor's consent to disclose information about the data subjects to whom the Personal Data of the Data Processor concerns and, in all other cases, if possible, afford the Data Processor an opportunity to make representations to the Data Controller regarding that request for information within five working days.
4. This Clause 3 shall survive termination of this Agreement.

Annex A – Standard Contractual Clauses

Standard Contractual Clauses for international transfers from controller to processor.

Parties

The Data Importer: TheYachtMarket.com Limited registered in England and Wales with company number 04666162.

The Data Exporter: You, the Customer.

Clause 1. Definitions

For the purposes of the Clauses:

(a) '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;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) '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;
(d) 'the sub-processor' means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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;
(e) '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;
(f) '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.

Clause 2. 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.

Clause 3. Third-party beneficiary clause

(1) 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.
(2) 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.
(3) The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
(4) 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.

Clause 4. Obligations of the data exporter

The data exporter agrees and warrants:

(a) 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;
(b) 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;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) 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;
(e) that it will ensure compliance with the security measures;
(f) 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;
(g) to forward any notification received from the data importer or any sub-processor 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;
(h) 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 sub-processing 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;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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;
(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5. Obligations of the data importer

The data importer agrees and warrants:

(a) 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;
(b) 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;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(e) 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;
(f) 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;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, 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;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6. Liability

(1) 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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
(2) 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 sub-processor 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 sub-processor of its obligations in order to avoid its own liabilities.
(3) 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7. Mediation and jurisdiction

(1) 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:
- (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- (b) to refer the dispute to the courts in the Member State in which the data exporter is established.
(2) 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.

Clause 8. Cooperation with supervisory authorities

(1) 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.
(2) The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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.
(3) The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9. Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10. 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 Clauses.

Clause 11. Sub-processing

(1) 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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses3. Where the sub-processor 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 sub-processor's obligations under such agreement.
(2) The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
(3) The provisions relating to data protection aspects for sub-processing 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.
(4) The data exporter shall keep a list of sub-processing 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.

Clause 12. Obligation after termination

(1) The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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.
(2) The data importer and the sub-processor 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.

Effective date of the Standard Contractual Clauses

The parties intend that these Clauses should only become effective if Art 44 of the General Data Protection Regulation (the “GDPR”) applies to a transfer of personal data from the EEA to the UK, because the UK has left the European Union, and the transfer is not permitted under Art 45.

On that basis, the Clauses will become effective on:

(i) the first date Article 44 GDPR applies to a transfer of personal data from the EEA to the UK, and that transfer is not permitted under Article 45 GDPR; or
(ii) the date of the Principal Agreement, if later.

In this clause, 'a transfer of personal data' has the same meaning as in Article 44 of the GDPR.

Appendix 1

Data Exporter

The data exporter is you, the Customer.

The data exporter's business or organisation type is:

General business

The data exporter is using the personal data which is being transferred for the following purposes or activities:

Advertising, marketing and public relations of the data exporter's own business or activity, goods or services.
Advertising, marketing and public relations for others, including public relations work, advertising and marketing, host mailings for other organisations, and list broking.

Data Importer

The data importer is TheYachtMarket.com Limited.

The data importer's business or organisation type is:

General business

The data importer's activities for the data exporter, which are relevant to the transfer are:

Advertising, marketing, and public relations services.
IT, digital, technology or telecom services, including provision of technology products or services, telecoms and network services, digital services, hosting, cloud and support services or software licensing.

Data subjects

The personal data transferred concern the following categories of data subjects:

Staff including volunteers, agents, temporary and casual workers
Customers and clients (including their staff)
Suppliers (including their staff)
Complainants, correspondents and enquirers

Categories of data

The personal data transferred concern the following categories of data:

Personal details, including any information that identiﬁes the data subject and their personal characteristics, including: name, address, contact details, age, date of birth, sex, and physical description.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data:

Not applicable

Processing operations

The personal data transferred will be subject to the following basic processing activities:

Receiving data, including collection, accessing, retrieval, recording, and data entry
Holding data, including storage, organisation and structuring>
Using data, including analysing, consultation, testing, automated decision making and profiling
Updating data, including correcting, adaptation, alteration, alignment and combination
Protecting data, including restricting, encrypting, and security testing
Sharing data, including disclosure, dissemination, allowing access or otherwise making available
Returning data to the data exporter or data subject
Erasing data, including destruction and deletion

Appendix 2

The following checklist sets out the description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5 (c):

We use firewalls to protect our internet connection.
We choose the most appropriate secure settings for our devices and software.
We control who has access to your data and services.
We protect ourselves from viruses and other malware.
We keep our software and devices up to date.
We regularly backup our data.

Appendix 3

The Data Exporter may request the Data Importer to transfer the Data Exporter's boat listings to other data processors, for example to facilitate sharing of the Data Exporter's boat listings across marketplace portals.

Data transfers of this type will only take place if requested by the Data Exporter and only to the marketplace portals the Data Exporter has specified.

Such marketplace portals may be located in countries outside the EEA which may have different data protection standards.

If the Data Exporter requests such a data transfer, the Data Exporter confirms all data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards.

For the purpose of this category of recipient:

Data subjects are the staff of the Data Exporter whose personal details are included in the data transfers to enable routing of enquiries regarding the Data Exporter's inventory listings to the correct person in the Data Exporter's organisation.
The categories of personal data transferred include the name, address and contact details. These should normally be the data subjects' work address and contact details; not their home details. However, this depends on the information the Data Exporter has provided to the Data Importer.

Data Processing Agreement

Annex A – Standard Contractual Clauses

Appendix 1

Appendix 2

Appendix 3

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