Cruises - Controller to Controller Agreement (including the SCCs) -

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CRUISES – CONTROLLER TO CONTROLLER AGREEMENT (INCLUDING THE SCCS)

SCOPE: Where (a) Supplier is using a GDS (global distribution system) to distribute data to Expedia; and (b) Expedia and Supplier are processing personal data in connection with providing or receiving services or promoting or marketing (or remarketing) the services, products or supply of the other party (in each case, as such activities or services are further described under the relevant agreement entered into between the parties (the “Agreement”), herein collectively referred to as “Relevant Activities”), this global controller to controller agreement (“C2C Agreement”) is supplemental to and applies to such Agreement, and sets out additional terms, requirements and conditions on which Expedia and Supplier will each process personal data in connection with the Agreement. In this C2C Agreement, “Expedia” refers to Expedia, Inc. and/or any other Expedia group company/ies party to the Agreement. “Supplier” refers to one or more third-party cruise supplier that contracts with Expedia for Relevant Activities (and all references to either Expedia or Supplier will be construed as plural terms to the extent required by the Agreement).

1. DEFINITIONS AND INTERPRETATION

1.1 This C2C Agreement is subject to the terms of the Agreement and is incorporated into the Agreement. Interpretations and defined terms set forth in the Agreement apply to the interpretation of this C2C Agreement unless otherwise defined herein; and:

1. “controller”, “personal data”, “process”, “personal data breach” and “supervisory authority” or their equivalent terms each have the meaning given to them in Applicable Data Protection Law(s).
2. “Applicable Data Protection Law(s)” means all data protection/privacy laws that apply to personal data processed under the Agreement.
3. “Customer” means an individual whose personal data is processed as Relevant Personal Data by a Party in connection with the Agreement.
4. “EU-U.S DPF” means an EU-U.S. Data Privacy Framework, the UK Extension to the EU-U.S. Data Privacy Framework and/or Swiss-U.S. Data Privacy Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission from time to time and which has not been invalidated.
5. “Permitted Purpose” means for the purpose of (a) facilitating the Relevant Activities; (b) improving the provision of the Relevant Activities, including the underlying technology; (c) creating internal reports for analytics, business intelligence and business reporting; (d) responding to law enforcement requests; (e) facilitating business asset transactions (which may extend to any mergers, acquisitions or asset sales); and (f) otherwise complying with our obligations under the Agreement and applicable laws.
6. “Relevant Personal Data” means personal data collected or otherwise processed by Expedia or Supplier in connection with the Agreement.
7. “Restricted Transfer Data” means any personal data processed by or on behalf of Expedia under the Agreement that relates to individuals who are located in the European Economic Area, Switzerland or UK.
8. “SCCs” means the approved European Commission’s Standard Contractual Clauses for the transfer of personal data from the European Union to third countries, as issued on 4 June 2021, and as amended, replaced, supplemented, or superseded from time to time, and the full current version of which can be found at https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc/standard-contractual-clauses-international-transfers_en
9. “Staff” means past, potential, present and future staff of the Data Exporter (including those who work on a non-temporary basis, and includes volunteers, agents, independent contractors, interns, temporary and casual workers) ("Employees"); relatives, beneficiaries, parents and guardians of Employees ("Relatives"); and job applicants.

1.2 In the case of conflict or ambiguity between:

1. any of the provisions of this C2C Agreement and the provisions of the Agreement, the provisions of this C2C Agreement will prevail to the extent of the subject matter of this C2C Agreement; and
2. any of the provisions of this C2C Agreement and the SCCs incorporated by reference into them, the provisions of the executed SCCs will prevail.

2. RELATIONSHIP OF THE PARTIES AND DATA PROTECTION

2.1 Each of Expedia and Supplier acknowledge that for the purpose of Applicable Data Protection Law, each party is an autonomous and independent controller.

2.2 Supplier acknowledges that where Expedia has self-certified its compliance to the EU-U.S. DPF, it has done so in respect of customer personal data only and not in respect of its own employee personal data. Supplier further acknowledges that to the extent EU-U.S. DPF applies to the Relevant Personal Data, Expedia is required to flow down certain EU-U.S. DPF data protection requirements to Supplier under this C2C Agreement as set out in Clauses 3.8 and 3.9 below.

2.3 Expedia acknowledges that where (a) Supplier has indicated reliance on its self-certification of its compliance to EU-U.S. DPF in the Agreement; and (b) to the extent EU-U.S. DPF applies to the Relevant Personal Data, Supplier is required to flow down certain EU-U.S. DPF data protection requirements to Expedia, and the obligations set out in Clauses 3.8 and 3.9 below will be deemed to be reciprocal obligations, and references to each of Expedia and Supplier shall be construed accordingly.

3. OBLIGATIONS RELATING TO RELEVANT PERSONAL DATA

3.1 Each Party will:

1. comply with all Applicable Data Protection Law applicable to controllers when processing such Relevant Personal Data;
2. ensure that it has an appropriate lawful basis under Applicable Data Protection Laws for its processing of Relevant Personal Data, including for the sharing of Relevant Personal Data to the other Party for use by that Party as an independent and autonomous controller in accordance with the Agreement;
3. implement and maintain all appropriate technical and organizational measures and safeguards to protect Relevant Personal Data they each process from and against a personal data breach, taking into account the risks represented by the processing and the nature of the Relevant Personal Data;
4. take all necessary measures to ensure that Relevant Personal Data are transferred in accordance with Applicable Data Protection Law; and
5. not share, distribute, sell or otherwise permit access to Relevant Personal Data with any third party save for any data sharing that is necessary to fulfil a Permitted Purpose or as otherwise agreed between the Parties in the Agreement.

3.2 Transparency and disclosures: Each party will ensure that all Customers are made aware in a timely manner, via its privacy policy and/or by any other appropriate means, that their personal data will be shared with the other party for the Permitted Purposes (or such category of parties in general terms, if permitted under Applicable Data Protection Law); and will direct Customers to the other party’s privacy policy (specifically or generally) for more information about their handling of their personal data.

3.3 Naming the other Party : Neither Party will name the other in any public statement or disclosure to an individual or to a Supervisory Authority or other legal body relating to privacy without obtaining prior written approval from the other, unless legally prohibited from liaising with the other party.

3.4 Government requests for information: Where either Party (the Receiving Party) has received a request from government bodies in relation to surveillance activity, it will inform the other Party of such request where legally permitted to do so. In the event that a Party receives a government demand for access to Relevant Personal Data, that Party will (a) provide a copy of the demand to the other Party unless legally prohibited from doing so; (b) consult with the other Party and agree response unless legally prohibited from doing so; (c) challenge such demand to the extent, in the reasonable opinion of the Receiving Party, that such demand conflicts with that Party’s obligations under Applicable Data Protection Law; and (d) shall only disclose or provide access to Relevant Personal Data in response to any demands where compelled to do so.

3.5 Breaches: In the event of a confirmed personal data breach affecting Relevant Personal Data which is both reportable to a supervisory authority and affecting Relevant Personal Data of Staff of the other Party (where that Relevant Personal Data has been specifically collected for the purpose of  facilitating Relevant Activities for Staff of the other Party and not as coincidental occurrence), the Party suffering such breach will promptly notify the other Party, providing full details of the same. In such event, both parties shall cooperate (reasonably and in good faith to remedy or mitigate the effects of such personal data breach, and the reasonable costs of such cooperation shall be borne by the party that suffered the personal data breach.

3.6 Confidential Information: All types of data shared between Parties are to be considered Confidential Information. Therefore, those data can’t be shared without specific written authorization from the Party to which those data belong other than in accordance with the Agreement. Both Parties agree to use those data exclusively in accordance with the Agreement and not for any further purpose without express written consent of the other Party. Parties are also held fully responsible for the conduct of their own Staff.

3.7 EU-U.S. DPF: While, and to the extent that EU-U.S. DPF is a valid and recognized basis for transfers to the US from time to time, EU-U.S. DPF shall apply for transfers of Restricted Transfer Data from Supplier to Expedia. In such event, the provisions of Clause 3.10 below apply only, in respect of Expedia’s receipt of Restricted Transfer Data in the United States, if and to the extent that Expedia’s EU-U.S. DPF certification lapses or otherwise ceases to apply. If the Supplier has elected to also rely on EU-U.S. DPF, the above condition shall equally apply to Supplier.

E3.8 U-U.S. DPF Flowdown Obligations: Supplier will provide at least the same level of protection for the Relevant Personal Data as is required under EU-U.S. DPF; and Supplier shall promptly notify Expedia if it makes a determination that it can no longer provide this level of protection. In such event, or if Expedia otherwise reasonably believes that Supplier is not protecting the Relevant Personal Data to the standard required under EU-U.S. DPF, Expedia may either: (a) instruct Supplier to take reasonable and appropriate steps to stop and remediate any unauthorized processing, in which event Supplier will promptly cooperate with Expedia in good faith to identify, agree and implement such steps; (b) agree an alternate safeguard that may apply to the processing under Applicable Data Protection Law; or (c) terminate this C2C Agreement and the Agreement without penalty by giving notice to Supplier. If the Supplier indicates in the Agreement that it also elects to rely on EU-U.S. DPF in the Agreement, then the above provisions and those of Clause 3.9 below shall be deemed to be apply as if the obligations are two-way.

3.9 EU-U.S. DPF Disclosure Obligations: Supplier acknowledges that Expedia may disclose this C2C Agreement and any relevant privacy provisions in the Agreement to the US Department of Commerce, the Federal Trade Commission, any European data protection authority, or any other US or EU judicial or regulatory body upon their request and that any such disclosure shall not be deemed a breach of confidentiality.

3.10 SCCs: To the extent that (a) Restricted Transfer Data is in scope; and (b) EU-U.S. DPF either is not valid or does not apply to a Restricted Data Transfer from time to time, the Parties agree to enter into the SCCs which are incorporated by reference into this C2C Agreement on an unchanged basis save for the following elections:

1. Module 1 (Controller to Controller) only of the SCCs apply.
2. For the purposes of clause 9(a) of the SCCs, option 1 (“Specific Prior Authorization”) is deleted.

• For the purposes of clause 11(a) of the SCCs, the optional language is deleted.

1. For the purposes of clause 13 of the SCCs, the relevant paragraph is “The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority”.
2. For the purposes of clause 17 of the SCCs, the governing law is Ireland.
3. For the purposes of clause 18(b) of the SCCs, the selection is Ireland.

• A new clause 19 is added to the SCCs to cover transfers of personal data from the United Kingdom to outside of the United Kingdom as follows:

“Clause 19

UK GDPR and DPA 2018

The Parties agree that these Clauses will extend and apply, to the extent relevant to the transfer in question, to cover extra-territorial transfers that fall under the scope of UK GDPR and Data Protection Act 2018 (a UK transfer). For the purposes of such UK transfer, the provisions of the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses shall apply as set out in the form attached as the Addendum.

• A new clause 20 is added to cover transfers of personal data from Switzerland to outside of Switzerland as follows:

“Clause 20

Swiss – FADP

The Parties agree that these Clauses will extend and apply, to the extent relevant to the transfer in question, to cover extra-territorial transfers that fall under the scope of Federal Act of Data Protection (FADP) (referred to in this Clause as a Swiss transfer). For the purposes of such Swiss transfers, the governing law shall be deemed to be the selected Member State, the choice of forum shall be the selected Member State and the Federal Data Protection and Information Commissioner (FDPIC) shall be the competent supervisory authority. The Parties further agree that such further changes shall be construed to be made to the Clauses in respect of a Swiss transfer as are deemed necessary by the FCPIC to comply with the UK GDPR and FADP, and the Clauses shall be interpreted in accordance with the requirements for Swiss transfers arising under those laws or as otherwise set out in guidance issued by the FDPIC, without the Parties having to enter into separate standard contractual clauses prepared specifically for their Swiss transfers. The Parties shall further do all such acts and things as may be necessary to ensure compliance with the FADP when engaging in Swiss transfers.”

3.11 Annex 1 to these C2C Agreement constitutes Annex 1 of the SCCs. Unless the Supplier has provided an alternative Annex 2 which has been accepted as sufficient by Expedia for the purposes of the SCCs, Annex 2 to this C2C Agreement will apply to both Parties for the purposes of the SCCs incorporated under this Part 3, and references to Expedia Group will be deemed to generally apply to both the Expedia group and the group of companies to which the Supplier belongs. The Addendum to this C2C Agreement constitutes the UK Addendum for the purposes of the SCCs.

4. Cardholder and Financial/Payment Account Data

Each Party agrees that it will process, store, transmit and access any Relevant Persona Data that comprises payment information (including, without limitation, credit card, debit card, or financial account information) in compliance with the current Payment Card Information Data Security Standard (“PCI DSS”). In addition, where Supplier is the merchant of record and where Expedia possesses, stores, processes, or transmits Customer’s cardholder data on Supplier’s behalf, or to the extent that Expedia could impact the security of Supplier’s cardholder data environment, Expedia acknowledges that Expedia is responsible for the security of cardholder data that Expedia possesses, stores, processes or transmits and will comply with the PCI DSS as issued by the PCI Security Standard Council, as updated from time to time.

5. TERM AND TERMINATION

5.1 This C2C Agreement will remain in full force and effect so long as the Agreement remains in effect.

5.2 Any provision of this C2C Agreement that expressly or by implication should come into or continue in force on or after termination of the Agreement in order to protect Relevant Personal Data will remain in full force and effect.  
 

ANNEX I – SCCs PROCESSING OVERVIEW

MODULE ONE: Part 1: Controller to Controller (Supplier to Expedia)

A. LIST OF PARTIES

Data exporter(s):

Data importer(s):

B. DESCRIPTION OF TRANSFER

B. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13 of SCCs

IRISH DATA PROTECTION AUTHORITY

MODULE ONE: Part 3: Controller to Controller (Expedia to Supplier)

A. LIST OF PARTIES

Data exporter(s):

The Parties identified as Data Importers in Module 1 above. See Module 1 for further details.

Data importer(s):

The Party/ies identified as Data Exporter(s) in Module 1 above. See Module 1 for further details.

C. DESCRIPTION OF TRANSFER

D. COMPETENT SUPERVISORY AUTHORITY

As per Module 1.

ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES

The technical and organisational measures that apply to us/Expedia for the purposes of Module 2 are set out below.

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (Addendum)

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1 Tables

Part 3: Mandatory Clauses

Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses.