This Services Agreement (the “Agreement”) is by and between you (“User” or “you”/“your”) and Tripadvisor LLC dba Bókun, a Delaware limited liability company located at 400 1st Avenue, Needham, MA 02494, USA (“Bókun” or “we”/“our”/“us”).
By using all or any part of the services described in this Agreement and/or by creating an account with Bókun (a “User Account”), you represent that you accept and will comply with all of the terms of this Agreement, including all documents, policies and supplemental terms referred to within it, which are incorporated into this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms of this Agreement, in which case “User” and “you” shall refer to such entity. Together, Bókun and the User will be referred to in this Agreement as the “Parties”.
1. The Services
1.1 Bókun provides various services to suppliers, resellers and affiliates of travel and touristic services, including but not limited to tours, activities, attractions, accommodation, car rentals, transport and/or any type of event (collectively referred to as “Travel Products”).
1.2 The services provided by Bókun may include (but are not limited to) the following:
1.2.1 access to a day-to-day management and sales system, including but not limited to booking engines (the “Software”);
1.2.2 access to other users of Bókun’s online marketplace (the “Bókun Marketplace”), and the opportunity to enter into contracts with such users to resell Travel Products or package your Travel Products with those of other users;
1.2.3 access to travel agencies and other distribution channels, through which you may sell your Travel Products (subject to the terms of business of those agencies and channels);
1.2.4 the opportunity to participate in Bókun’s affiliate marketing hub (the “Bókun Affiliate Hub”), through which you can permit other users of the Bókun Marketplace to promote your Travel Products and drive bookings, and/or place other users’ Travel Products on your site in return for a commission;
1.2.5 a website builder and related services (the “Bókun Website Service”); and
1.2.6 other business services, including those accessible through Bókun’s app store (the “Bókun App Store“).
1.3 All of the services described in Section 1.2 and any other services that may be provided by Bókun from time to time (including the Bókun APIs) shall be referred to as the “Services”. Additional terms may apply to the provision of certain Services (“Supplemental Terms”), and such Supplemental Terms shall be incorporated within the terms of this Agreement.
1.4 You acknowledge and agree that you have the following additional responsibilities if you subscribe to the Bókun Website Service:
1.4.2 It is solely your responsibility to provide any User Content, information, equipment or software that may be necessary for you to use the Bókun Website Service.
1.4.3 You have sole responsibility for backing up all User Content. Bókun shall in no circumstances be responsible for the loss of any User Content.
1.4.4 You will use your best efforts to ensure that the User Content and Bókun Website are and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
1.5 All Services are provided “as-is” and Bókun assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any User communications, personalisation settings or content, information or other data. You are responsible for obtaining access to the Services, and that access may involve third party fees (such as Internet service provider or airtime charges). You alone are responsible for all such fees. In addition, you must provide, and are responsible for, all equipment necessary to access the Services. You agree to use the Services in a manner consistent with all applicable laws and regulations and in accordance with the terms of this Agreement.
1.6 Bókun reserves the right at any time to amend, suspend or discontinue any one or more of the Services, with or without notice. You agree that Bókun shall not be liable to you or any third party for any such amendments, suspension or discontinuance of any Service.
1.7 Bókun may at any time and from time to time establish general practices and limits concerning use of the Services, including without limitation the maximum disk space, bandwidth, volume of Bókun API calls and server processing that will be allotted on Bókun’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you and your customers and/or agents may access the Services in a given period. You will comply with such practices and limits. You may not reverse engineer, decompile or disassemble any Software. Bókun takes no responsibility or liability for the deletion or failure to retain any messages and other communication or content, information or other data maintained or transmitted by the Services. These general practices may be amended and modified by Bókun from time to time with or without notice to you.
1.8 Your access to and use of any application programming interfaces (APIs) provided to you by Bókun (the “Bókun API“) is governed by the Bókun API Terms (https://bokun.io/legal/api-terms), which are incorporated herein by reference.
2. User Account
2.1 To access and use one or more of the Services, you will have to create an account (“User Account”).
2.2 If you are an individual, you must be at least 18 years old, and legally able to carry out your business in your jurisdiction. You confirm that you will use the Services solely for the purposes of carrying on a business activity and not for any personal, household or family purpose. If you sign up for a User Account on behalf of your employer, your employer will be deemed to be the User for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each User is responsible for: (a) ensuring that its employees, agents and subcontractors comply with this Agreement and (b) any breach of this Agreement by User’s employees, agents or subcontractors.
2.3 You shall ensure that all information you provide to Bókun in connection with your User Account and use of the Services is at all times accurate, complete and up-to-date.
2.4 You are solely responsible for maintaining the confidentiality of your password and other User Account information. You are fully responsible and liable for all activities on your User Account (including any sub-accounts as described in Section 2.4).
2.5 If you are granted permission by Bókun to create sub-accounts within your User Account, such sub-accounts may be created solely for members of your organization, and not for any third parties.
2.6 You shall immediately notify Bókun of any unauthorised use of your User Account, password or any other breach of security.
2.7 You shall ensure that you exit and log off your User Account at the end of each usage session. Bókun will not be liable for any loss or damage arising from your failure to comply with this Section 2.
3. Fees and Payments
3.1 General. You will pay the Fees applicable to (a) your subscription to the Services (“Subscription Fees”), (b) service fees calculated as a percentage of the value of any bookings that are made using the Services (“Service Fees”), and any fees relating to your purchase or use of any Third Party Services (“Additional Fees”). Together, the Subscription Fees, the Service Fees, and the Additional Fees are referred to as the “Fees”.
3.2 Payment Method. You must keep a valid payment method on file with Bókun to pay for all incurred and recurring Fees. Bókun will charge applicable Fees to any valid payment method that you authorize within your User Account (the “Authorized Payment Method”), and Bókun will continue to charge the Authorized Payment Method for applicable Fees until all outstanding Fees have been paid in full.
3.3 Subscription Fees. The Subscription Fees are charged in advance on a recurring basis (except where may otherwise have been agreed with you). Accordingly, where applicable, Bókun will attempt to automatically renew the Services on a monthly basis (each month being a “Billing Period”), and will automatically charge you the applicable Subscription Fees using the Authorized Payment Method. If you wish to stop using one or more Service, you need to notify Bókun within your User Account at least two (2) US business days prior to the start of the next Billing Period. We will then remove your access to such Service(s) from the end of your last Billing Period.
3.4 Free Trials. Bókun may sometimes offer the opportunity to utilize one or more Services for free (or partially free) for a limited period of time (“Free Trial”). If you are participating in a Free Trial, you shall have the right to use such Service(s) for the duration of the Free Trial without charge (or, as applicable, with the limited charges specified) until the expiration date of the Free Trial. Unless you notify Bókun by email that you do not wish to subscribe to such Service(s) at least two (2) US business days prior to such expiration date, Bókun may automatically charge you for your first payment the day following expiry of the Free Trial, and your subscription to the Service(s) shall then begin on the basis of the standard Fees.
3.5 Service Fees. Bókun may offer you a choice of how to pay the Service Fees. If you choose to be invoiced by Bókun for the Service Fees on a monthly basis, Section 3.5 (a) – (c) shall apply. If you choose to pay the Service Fees using “Bókun Pay”, Section 3.6 shall apply.
(a) Bókun shall send an invoice for the Service Fees to you at the beginning of each month, based on booking value and booking dates (not travel dates) in the preceding month.
(b) For the avoidance of doubt, if any booking is cancelled (in accordance with the applicable cancellation policy) after the corresponding invoice has been raised, the Service Fees in respect of such booking shall still be payable by you.
(c) Each invoice submitted by Bókun shall be paid in full by you by credit card. You are required to submit your credit card details before being invoiced by Bókun.
3.6 Bókun Pay. If you choose to pay the Service Fees using “Bókun Pay”, you will be required to create an account with a third party payment provider, subject to separate terms and conditions with such third party (the “Bókun Pay Provider”). You agree to be bound by the Bókun Pay Provider’s terms and conditions. Unless otherwise notified to you, the Service Fees will be paid to Bókun by the Bókun Pay Provider, based on booking value and booking dates (not travel dates) in the preceding month. In choosing to use Bókun Pay, you agree that no refunds will be due in respect of Service Fees for bookings that are subsequently cancelled and/or otherwise refunded at any time.
3.7 Changes to Fees. Bókun reserves the right to increase the Fees from time to time with effect from the following month by providing you with no less than 30 days’ notice. For the avoidance of doubt, Bókun does not need to notify you if we decide to raise the price of a Service for which you are not subscribed.
3.8.1 All amounts payable under this Agreement:
(a) will be exclusive of any applicable sales, use, excise, value added tax, or other tax or amount which may be levied on the Services provided for under this Agreement. Where applicable, taxes payable will be reflected as separate items on invoices, which will include a detailed description of such tax; and
(b) shall be paid in full without any deductions except where the payor is required by law to deduct withholding tax from sums payable to the payee and remit to the local tax authorities. Payor shall promptly provide to payee any proof of such remittances to the local tax authorities, including receipts issued from the appropriate tax regulatory authority or any other relevant documentation evidencing payment of any amounts deducted pursuant to this clause.
3.8.2 There may be additional terms and conditions relating to taxes that are set out in the Supplemental Terms. It is your responsibility to ensure that you comply with all such additional terms.
4. Intellectual Property Rights
4.1 Bókun’s intellectual property rights in or arising out of the Services shall at all times be the property of Bókun. Nothing in this Agreement shall be regarded as the assignment of any such intellectual property rights to you.
4.2 Any intellectual property rights in or arising out of the Services that may be owned by third parties shall at all times remain with such third parties.
5. User Content
5.1 Bókun does not claim ownership of any content that is submitted to or otherwise made available by you for the use of any part of the Services (the “User Content”). The User Content includes, but is not limited to: information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials. You are fully responsible for all of your User Content, including for archiving and backing up your User Content frequently.
5.2 You grant Bókun a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display your User Content for the purposes of providing the Services. The license exists only for as long as you elect to continue to include such User Content on or within the Services and will terminate at the time the User removes such User Content from the Services and/or terminates this Agreement.
5.3 By using the Services, you agree that Bókun may use your name and logo in presentations, marketing material, client lists, financial reports and on websites listing Bókun’s customers. If, pursuant to the provision of the Bókun Website Service, Bókun makes an icon available to you incorporating the words “powered by Bókun” (or similar) (the “Icon”), Bókun grants to you a limited, royalty-free and non-exclusive license to use the Bókun name solely as incorporated within such Icon for the purposes of displaying the Icon on your Bókun Website.
5.4 You agree not to upload, transmit or otherwise make available in connection with the Services any User Content that is unlawful, subject to third party property rights, harmful, threating, abusive, harassing, torturous, defamatory, vulgar, obscene, libellous, invasive of another person’s privacy, hateful, racist or otherwise objectionable.
5.5 If Bókun becomes aware of any User Content violating Section 5.4 of this Agreement, Bókun reserves the right to remove any such User Content from the Services.
5.6 Under no circumstances will Bókun be liable for the User Content, including but not limited to, for any errors or omissions in User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, transmitted or otherwise made available via the Services. You bear all risks associated with the use of any of your User Content.
6. Third Party Services
6.1 Bókun may from time to time recommend, provide you with access to, and/or enable your use of third party software, applications, products, services or website links (collectively, “Third Party Services”), including via the Bókun App Store. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the provider of the applicable Third Party Services (each, a “Third Party Provider”). In addition to this Agreement, you also agree to be bound by the additional terms applicable to any Third Party Services you purchase from, or that are provided by, Third Party Providers.
6.2 Any use by you of Third Party Services offered through the Services or through the Bókun App Store is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and privacy policies applicable to such Third Party Services before using them. In some instances, Bókun may receive a revenue share from Third Party Providers whose Third Party Services you use. Bókun does not provide any warranties or make representations to you with respect to any Third Party Services. You acknowledge that Bókun has no control over Third Party Services and shall not be responsible or liable to you or anyone else for such Third Party Services.
6.3 The availability of Third Party Services through the Services, including the Bókun App Store, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Bókun. Bókun does not guarantee the availability of Third Party Services and you acknowledge that Bókun may disable access to any Third Party Services at any time in its sole discretion and without notice to you. Bókun is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. Bókun strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs.
6.4 If you install or enable a Third Party Service for use with the Services, you grant Bókun permission to allow the applicable Third Party Provider to access your data and other materials and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other materials or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Bókun is not responsible for any disclosure, modification or deletion of your data or other materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other materials.
6.5 The relationship between you and any Third Party Provider is solely and strictly between you and such Third Party Provider, and Bókun has no obligation to intervene in any dispute arising between you and a Third Party Provider.
6.6 Under no circumstances shall Bókun be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or any other damages or loss whatsoever, that result from any Third Party Services and/or your contractual relationship with any Third Party Provider. These limitations shall apply even if Bókun has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
6.7 You agree to indemnify and hold Bókun, its affiliates, respective officers, directors and employees harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service and/or your relationship with a Third Party Provider.
7. Confidentiality and Data Protection
7.1 Any information disclosed by or on behalf of one Party to the other Party during the term of this Agreement that is identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, including, without limitation, all information pertaining to a Party’s business, technical processes and formulas, software, customer and prospective customer lists, product designs, sales, costs, unpublished price lists and other financial information, business plans, and marketing data, constitute “Confidential Information.” The Party receiving Confidential Information of the disclosing Party will maintain safeguards against its destruction, loss, alteration or disclosure, which safeguards shall be consistent with industry best practices and no less rigorous than the protections afforded by the receiving Party to its own proprietary information and will not, during or after the term of this Agreement, (a) use any such Confidential Information for any purpose other than to perform the receiving Party’s obligations or exercise the receiving Party’s rights under this Agreement and (b) disclose any such Confidential Information to any third party, other than disclosures made by Bókun pursuant to the activities contemplated in this Agreement. Notwithstanding the foregoing, the obligations of this Section 7 do not apply to information which is: (i) generally available to the public, without any obligation of confidentiality, other than by a breach of this Agreement by the receiving Party; (ii) rightfully received by the receiving Party from a third party without any obligation of confidentiality; (iii) independently developed by the receiving Party without reference to or reliance on the other Party’s Confidential Information; or (iv) generally made available to third parties by the disclosing Party without restriction on disclosure. Upon termination of this Agreement, or upon the disclosing Party’s earlier request, the receiving Party will return, or destroy and certify as such, all of the disclosing Party’s Confidential Information in the receiving Party’s possession or under the receiving Party’s control and will cease all use of such Confidential Information.
7.2 In relation to the Services, each Party shall comply with all requirements of applicable data processing laws and regulations (the “Data Protection Legislation”). Each Party acknowledges that, for the purposes of the Data Protection Legislation, you are the data controller and Bókun is the data processor. For the avoidance of doubt, you may not use any personal information (including e-mail addresses or other contact details) that is collected or acquired through your use of the Services in any way unless you have the lawful right to do so.
7.3 The Parties agree to the terms of the data processing agreement set forth in Annex 1 (the “Data Processing Agreement”) in relation with Bókun’s processing of personal data on your behalf.
8. Record Retention
Bókun shall compile and retain records of transactions, User Content and data related to the Services provided to you. You acknowledge and agree that Bókun may preserve, delete, and/or disclose any of the foregoing if required to do so by law or in the good faith believe that such preservation, deletion or disclosure is reasonably necessary to: a) comply with legal process; b) enforce this Agreement; or c) defend Bókun’s rights and/or those of any third parties.
9. Limitation of Liability
9.1 All usage of the Services is at your own risk.
9.2 Neither Bókun nor its affiliates, nor any of their respective officers, directors, members, shareholders, employees, agents, third party content providers, or licensors warrant that the Services or the Software will be uninterrupted, timely, secure or error-free, nor do they provide any warranty as to (a) the results that may be obtained from the use of any Service or the Software including their accuracy, reliability, quality, adequacy, timeliness or authenticity; or (b) the accuracy, reliability, quality, adequacy, timeliness or authenticity of any advertisements, information, services, products, merchandise and/or other material that is purchased through or provided via the Services. The Services and the Software are provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose.
9.3 In no event will Bókun, or any person or entity involved in creating, producing or distributing the Services or Software, be liable to you or to any other person or entity for any indirect, incidental, special, punitive or consequential damages, or loss of profit or revenue arising out of the use of or inability to use the Services or Software (including the Bókun APIs), including but not limited to losses incurred as a result of the modification of content or the failure of any content to transfer to a Bókun Website, any decrease in web traffic, SEO ranking, or any other impact on your business, whether financial or otherwise. This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behaviour, negligence, or under any other cause of action regardless of whether Bókun had notice of the cause or such cause was foreseeable. These disclaimers and limitations shall apply even in the event of a fundamental or material breach or a breach of the fundamental or material terms of this Agreement. To the maximum extent permitted by law, Bókun’s liability to you under this Agreement shall be limited to the Service Fees paid by you to Bókun in the six (6) months immediately preceding the date the cause of action arose.
9.4 You agree to indemnify and hold harmless Bókun, its affiliates, respective officers, directors and employees, from and against any and all claims of third parties relating to, arising out of or resulting from use of the Services and Software (including the Bókun APIs), other than claims arising from gross negligence or wilful misconduct of Bókun, its affiliates, respective officers, directors and/or employees.
9.5 By using any Service and agreeing to this Agreement, you acknowledge that you have not relied on any prior representation, warranty or other assurance made by or on behalf of Bókun, and you waive all rights and remedies which might otherwise be available to you in respect of such representation, warranty or other assurance, provided that nothing in this Section shall exclude or limit any liability for fraud.
10. Suspension and Termination
10.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement at any time. If you wish to terminate this Agreement, you must do so by notifying us through your User Account. Bókun may suspend and/or terminate any one or more of the Services at any time without notice.
10.2 Bókun may terminate the Services with immediate effect by giving written notice to you if:
10.2.1 you commit a material breach of any of the provisions of this Agreement; or
10.2.2 you become insolvent, cease to trade or have a liquidator, receiver, manager, administrator or administrative receiver or similar officer appointed in respect of the whole or part of your business, or enter into any arrangement or composition with your creditors, or are made bankrupt, or undergo a similar or analogous event in any jurisdiction;
10.2.3 you fail to pay any amount due and payable pursuant to Section 3, after Bókun has sent you a notification of payment failure; or
10.2.4 your User Account has been inactive for a period of ninety (90) days or more; or
10.2.5 if you object to the use of any sub-processor according to the Data Processing Agreement.
10.3 Upon termination, Bókun may in its sole discretion close your User Account, delete any existing data from your User Account, and refuse any future submission of data from you.
10.4 Upon termination, all unpaid Fees shall become due and payable.
11. Amendments to Agreement
Bókun may update or replace this Agreement without prior notice to you and at our sole discretion at any time by posting a new version to the Bókun website. Your continued access to or use of the Services and/or Software indicates your acceptance of the current published version of the Agreement.
12. Force Majeure
Bókun shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.1 TripAdvisor LLC dba Bókun does not accept legal notices or service of legal process by any means other than hard copy post delivered to TripAdvisor LLC, 400 1st Avenue, Needham, MA 02494, USA. For the avoidance of doubt and without limitation, TripAdvisor LLC therefore does not accept notices or legal service deposited upon any of its affiliates or subsidiaries.
13.2 All other notifications given in connection with this Agreement may be in writing via email. Bókun’s email address is firstname.lastname@example.org.
14. Assignment and other Dealings
14.1 Bókun may at any time assign, subcontract, delegate or deal in any other manner with any or all its rights and obligations related to the Services and this Agreement.
14.2 You shall not assign, transfer, delegate or deal in any other manner with any of its rights and obligations related to the Services and this Agreement without the prior written consent of Bókun, to be given or withheld in Bókun’s sole discretion.
15. Governing Law and Jurisdiction
15.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of the Commonwealth of Massachusetts, USA. Subject to Section 15.2, each Party hereby consents to the exclusive jurisdiction and venue of courts in Massachusetts, USA and stipulates to the fairness and convenience of proceedings in such courts for all disputes, both contractual and non-contractual, arising out of or relating to the use of the Services. All claims against TripAdvisor LLC arising from or relating to the Services must be heard and resolved in a court of competent subject matter jurisdiction located in the Commonwealth of Massachusetts. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including, without limitation, this section.
15.2 Nothing in this Section 15 shall limit the right of TripAdvisor LLC to take proceedings against you in any other court, or courts, of competent jurisdiction. The foregoing shall not apply to the extent that applicable law in your country of residence requires application of another law and/or jurisdiction.
DATA PROCESSING AGREEMENT
BACKGROUND AND PURPOSE OF PROCESSING
In relation to the Services, Bókun (the “Processor”) may process information and data, which can be considered Personal Data in the meaning of data protection legislation, i.e. Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 effective from 25 May 2018 (“Data Protection Legislation”), on behalf of the User (the “Controller”).
Where the Processor processes such Personal Data on behalf of the Controller, the Processor is considered a data processor according to Data Protection Legislation, and the Controller a data controller.
The purpose of this Data Processing Agreement is to regulate the Parties’ rights and obligations in relation to the Processor’s processing of Personal Data on behalf of the Controller, particularly to ensure the secure processing of the Personal Data and to fulfil the requirement of the Data Protection Legislation.
15.2 PROCESSING OF PERSONAL DATA AND CATEGORIES OF PERSONAL DATA AND DATA SUBJECTS
1.1 The Processor will process Personal Data related to the Controller’s business activities on behalf of the Controller (the “Data Subjects”).
1.2 The Processor will process the personal data uploaded by the Controller on the Processor’s Software (the “Personal Data”). They may include e.g.:
· Contact information
· Travel arrangement information
· Sensitive Personal Data, such as religious beliefs and health information.
15.3 THE PROCESSOR’S OBLIGATIONS
2.1 The Processor is only permitted to process Personal Data on behalf of the Controller in accordance with this Data Processing Agreement or in accordance with the Controller’s documented instructions, unless the Processor is authorized to do so by law.
2.2 The Processor shall ensure that its employees, and others who have access to the Personal Data, only process the Personal Data according to the instructions given by the Controller.
15.4 THE CONTROLLER’S OBLIGATIONS
3.1 The Controller warrants that it has the right to process the Personal Data in question, and that it has the right to appoint the Processor to process the Personal Data on the Controller’s behalf.
3.2 The Controller shall be responsible for notifying the processing activities to the applicable data protection authority and/or acquiring a permit for the processing, where applicable.
15.5 CONFIDENTIALITY AND TRAINING OF EMPLOYEES
The Processor shall ensure that all employees, and others who may have access to the Personal Data, have committed themselves to confidentiality about everything they learn of while processing Personal Data on behalf of the Controller.
15.6 SECURITY MEASURES
5.1 The Processor shall ensure that appropriate technical and organizational measures are implemented to ensure a level of security of the Personal Data processed on behalf of the Controller. The measures shall ensure a level of security appropriate to the risk, taking into account the state of the art, the cost of implementation and the nature, scope, context and purpose of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
5.2 The Processor is responsible for ensuring that the technical and organizational measures adopted at all times are appropriate and sufficient.
5.3 For the purposes of preventing and limiting damage caused by human error, theft, fraud and other abuse, the Processor will implement and maintain:
· the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
· the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
· a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of processing.
5.4 The Processor will limit the access to the Personal Data to only those who need it for the purpose of its duties according to this Data Processing Agreement.
5.5 The Processor will ensure that all employees, who have access to the Personal Data from the Controller, have received appropriate training on the laws relating to the handling of Personal Data and are aware both of the Processors‘ duties, as well as their personal duties and obligations under Data Protection Legislation and this Data Processing Agreement.
5.6 The Processor shall notify the Controller without undue delay after becoming aware of a Personal Data breach and shall take reasonable steps to mitigate the effects and to minimize any damage resulting from such breach. To assist the Controller in relation to any Personal Data breach notification the Controller is required to make under the relevant Data Protection Legislation, such a notification shall include information the Processor reasonably is able to disclose to the Controller, taking into account the nature of the service, the information available to the Processor and any restriction on disclosing the information, such as confidentiality.
5.7 The Processor shall inform the Controller of where the Personal Data is stored upon request. The Processor may transfer Personal Data outside the European Economic Area, however only if such transfer is to an entity in a country that provides an adequate level of personal data protection within the meaning of Data Protection Legislation or the entity: (a) is part of the EU-U.S. Privacy Shield Framework; or (b) uses Standard Contractual Clauses adopted by the European Commission. If the mechanism used by the Parties for the transfer of Personal Data to third countries should become invalid, the Parties will promptly put in place an alternative mechanism for the transfer of Personal Data to third countries. Bókun primarily hosts the Personal Data at Amazon Web Services.
15.7 INTERNAL AUDIT
6.1 The Processor shall conduct an internal audit of the processing of Personal Data to make sure the Personal Data is processed in accordance with applicable law and that appropriate security measures have been implemented.
6.2 The internal audit shall be conducted regularly. The frequency and scope of the audit shall be decided depending on the risk involved by the processing, the nature of the data being processed, the technique being used to ensure the security of the data and the cost of the audit. The audit shall be performed at the least once a year.
6.3 The Processor shall prepare a report on the performance of the internal audit. The report shall describe the outcome of each element of the audit. The reports shall be securely stored.
7.1 The Controller accepts the Processor’s use of sub-processors to perform specific processing activities according to this Data Processing Agreement. A list of the Processors sub-processors shall be available upon reasonable request. The Controller can always object to the use of sub-processors within 30 days from receipt of such list.
7.2 The Processor shall impose materially the same data protection obligations as set out in this Data Processing Agreement and the Data Protection Legislation on any sub-processor.
7.3 The Processor shall always remain fully liable to the Controller for the performance of the sub-processor’s obligations.
15.9 DATA SUBJECT REQUESTS AND THIRD PARTY RIGHTS
8.1 The Processor shall assist the Controller by appropriate technical and organizational measures, to the extent reasonable possible, to respond to requests for exercising any Data Subject’s rights in accordance with the Data Protection Legislation, e.g. access to Personal Data, rectification or erasure of data and portability of data. The same applies to any requests and enquiries by relevant supervisory authorities.
8.2 The Processor shall refer any Data Subjects’ requests which relate to the Controller’s data to the Controller.
15.10 DURATION OF DATA PROCESSING AGREEMENT
The Data Processing Agreement shall be valid as long as the Agreement is in force.
15.11 ERASURE OR RETURN OF PERSONAL DATA
10.1 The Processor shall, in consult with the Controller, erase the Personal Data where the data is no longer necessary in relation to the purposes for which they were collected, unless otherwise required by law.
10.2 The Controller can at any time instruct the Processor to erase or return Personal Data to the Controller. The Processor shall respond to such instructions as soon and to the extent reasonably possible.
10.3 Upon the termination of this Data Processing Agreement the Processor shall, at the Controller’s choosing, erase or return all Personal Data it stores or has access to, to the Controller. The Processor shall also erase all copies of the Personal Data, unless the Processor is obligated by law to store the data.
15.12 INDEMNITY AND COSTS
11.1 Each Party will hold the other Party harmless of any claims, damages, penalties and any costs or fees, of whatever nature incurred by the Party or for which the Party may become liable due to any failure by the other Party or its employees or agents to comply with any of its obligations under this Data Processing Agreement or any Data Protection Legislation.
11.2 The Controller shall indemnify and keep indemnified the Processor against all costs that relate to the Processor’s assistance to the Controller based on this Data Processing Agreement.
15.13 ACCESS TO INFORMATION ON PROCESSING
The Processor shall make available to the Controller all information necessary to demonstrate compliance with the obligations laid down by Data Protection Legislation and this Data Processing Agreement, upon request from the Controller.
All notifications according to this Data Processing Agreement shall be done in writing via email. Bókun’s email address is email@example.com.
This Data Processing Agreement shall prevail over other agreements in relation to the Processor’s processing of Personal Data on behalf of the Controller and other related obligations. Any other provisions of the Agreement shall remain in effect.
The Processor confirms that it has the ability and competence to fulfil the obligations set out in this Data Processing Agreement.
REFERRAL PROGRAM TERMS & CONDITIONS
16 REFERRAL PROGRAM TERMS & CONDITIONS
16.1 The terms of the Bókun Referral Program are incorporated into this Agreement by reference.