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DATA PROCESSING ADDENDUM

This Data Processing Addendum (the “Addendum”) is made pursuant to and a part of the Supplier or Member Agreement, as applicable, (the “Agreement”) by and between AVIAÂ (the “Data Processor”) and Enrolling Participant, Member Organization, or Supplier, as specified and defined in the Agreement. For the purposes of this Addendum, the applicable Enrolling Participant, Member Organization, or Supplier shall be referred to as the “Data Controller.” This Addendum is made effective as of the Effective Date specified in the Agreement. Except to the extent otherwise expressly set forth in this Addendum, this Addendum is governed by the terms and conditions of the Agreement. Any defined terms not otherwise defined herein shall have the meanings set forth in the Agreement.  All obligations set forth in the Agreement and this Addendum shall apply to any agent, subcontractor, or member of the Data Controller. This Addendum may be modified or amended only in writing signed by both Parties. The Parties hereto acknowledge having read this Addendum and agree to be bound by its terms.

  1. Subject Matter of this Addendum
    1. This Addendum applies exclusively to the processing of personal data that is subject to EU Data Protection Law provided in the scope of the Agreement.
    2. The term “EU Data Protection Law” shall mean (i) EU General Data Protection Regulation 2016/679 and the e-Privacy Directive 2002/58/EC and their national implementing legislations; (ii) the UK Data Protection Act; and (iii) the data protection Acts of the European Economic Area (“EEA”) countries (in each case, as such EU Data Protection Law is amended and replaced from time to time).
    3. Terms such as “Processing”, “Personal Data”, “Data Controller” and “Processor” shall have the meaning ascribed to them in the EU Data Protection Law.
    4. Insofar as the Data Processor will be processing Personal Data subject to EU Data Protection Law on behalf of the Data Controller in the course of the performance of the Agreement the terms of this Data Protection Addendum shall apply. An overview of the categories of Personal Data, the types of Data Subjects, and purposes for which the Personal Data are being processed is provided in Annex 2.
  2. The Data Processor and the Data Controller
    1. The Data Controller will determine the scope, purposes, and manner by which the Personal Data may be accessed or processed by the Data Processor. The Data Processor will process the Personal Data only as set forth in the Data Controller’s written instructions.
    2. The Data Processor will only process the Personal Data on documented instructions of the Data Controller in such manner as, and to the extent that, it is appropriate for the performance of the Agreement and the provision of the Services as specified therein, except as required to comply with a legal obligation to which the Data Processor is subject. In such a case, the Data Processor shall inform the Data Controller of that legal obligation before processing, unless that law explicitly prohibits the furnishing of such information to the Data Controller. The Data Processor shall not process the Personal Data in a manner inconsistent with the Data Controller’s documented instructions. The Data Processor shall promptly inform the Data Controller if, in its opinion, an instruction infringes EU Data Protection Law.
    3. The parties have entered into the Agreement, in part, in order to benefit from the expertise of the Data Processor in securing and processing the Personal Data for the purposes set out in Annex 2. The Data Processor shall be allowed to exercise its own discretion in the selection and use of such means as it considers necessary to pursue those purposes, subject to the requirements of this Data Processing Addendum.
    4. The Data Controller warrants that it has all necessary rights to provide the Personal Data to the Data Processor for the Processing to be performed in relation to the Agreement and the Services. To the extent required by applicable EU Data Protection Law, Data Controller is responsible for ensuring that any necessary data subject consents to this Processing are obtained, and for ensuring that a record of such consents is maintained. Should such a consent be revoked by the Data Subject, Data Controller is responsible for communicating the fact of such revocation to the Data Processor, and the Data Processor remains responsible for implementing any Data Controller instruction with respect to the further processing of that Personal Data.
  3. Confidentiality
    1. Without prejudice to any existing contractual arrangements between the parties, the Data Processor shall treat all Personal Data as confidential and it shall inform all its employees, agents and/or approved sub-processors engaged in processing the Personal Data of the confidential nature of the Personal Data. The Data Processor shall ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.
  4. Security
    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, without prejudice to any other security standards agreed upon by the Parties, the Data Controller and Data Processor shall implement appropriate technical and organisational measures  to ensure a level of security of the processing of Personal Data appropriate to the risk. These measures shall include as appropriate:
      1. measures to ensure that the Personal Data can be accessed only by authorized personnel for the purposes set forth in Annex 2 of this Data Processing Agreement;
      2. in assessing the appropriate level of security account shall be taken in particular of all the risks that are presented by processing, for example from accidental or unlawful destruction, loss, or alteration, unauthorized or unlawful storage, processing, access or disclosure of Personal Data;
      3. the pseudonymisation and encryption of Personal Data;
      4. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
      5. the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
      6. a process for regularly testing, assessing, and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing of Personal Data;
      7. measures to identify vulnerabilities with regard to the processing of Personal Data in systems used to provide services to the Data Controller;
    2. The Data Processor shall have in place an appropriate written security policy with respect to the processing of Personal Data, outlining in any case the measures set forth in Section 4(a).
    3. At the request of the Data Controller, the Data Processor shall demonstrate the measures it has taken pursuant to this Section 4. The Data Controller shall be entitled at its expense and on giving at least fourteen (14) days’ notice to the Data Processor to carry out, or have carried out by a third party who has entered into a confidentiality agreement with the Data Processor, industry standard audits of the Data Processor ´s premises and operations as these relate to the Personal Data and as reasonable and appropriate to demonstrate such compliance. the Data Processor shall cooperate with such audits carried out by or on behalf of the Data Controller and shall grant the Data Controller´s auditors reasonable access to any premises and devices involved with the Processing of the Personal Data. the Data Processor shall provide the Data Controller and/or the Data Controller´s auditors with reasonable access to any information relating to the Processing of the Personal Data as may be reasonably required by the Data Controller to ascertain the Data Processor ´s compliance with this Data Processing Addendum.
  5. Improvements to Security
    1. The parties acknowledge that security requirements are constantly changing and that effective security requires frequent evaluation and regular improvements of outdated security measures. The Data Processor will therefore evaluate the measures as implemented in accordance with Section 4 on an on-going basis and will tighten, supplement and improve these measures in order to maintain compliance with the requirements set out in Section 4. The parties will negotiate in good faith the cost, if any, to implement material changes required by specific updated security requirements set forth in applicable EU Data Protection Law or by data protection authorities of competent jurisdiction.
    2. Where an amendment to the Agreement is necessary in order to execute a Data Controller instruction to the Data Processor to improve security measures as may be required by changes in applicable EU Data Protection Law from time to time, the parties shall negotiate an amendment to the Agreement in good faith.
  6. Data Transfers
    1. The Data Processor shall promptly notify the Data Controller of any (planned) permanent or temporary transfers of Personal Data to a country outside of the European Economic Area without an adequate level of protection and shall only perform such a (planned) transfer after obtaining authorisation from the Data Controller.
    2. In the context of the Services, the Data Controller agrees that the Data Processor transfers or stores Personal Data on behalf of the Data Controller in the United States as necessary to perform the Agreement and any Services on behalf of the Data Controller.  The Data Processor agrees to protect Personal Data conveyed pursuant to the Agreement in the United States in compliance with EU Data Protection Law.
    3. Absent an adequacy finding or adequate safeguards, by signing this Data Processing Agreement, the parties execute the Standard Contractual Clauses (the “Model Clauses”) attached in Annex 3.  For the avoidance of doubt, the Model Clauses will apply to Personal Data Processed by the Data Processor in the context of the Agreement and relevant Services that are transferred outside of the EEA, either directly or via an onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for Personal Data under EU Data Protection Law.  For the purpose of this Data Processing Addendum, when the parties execute the Model Clauses, they acknowledge that (i) the Data Controller is the “data exporter” and the Data Processor is the “data importer,” (ii) the law applicable to the Model Clauses is the law applicable to this Data Processing Agreement; and (iii) the information contained in the Annexes to this Data Processing Addendum forms part of Annexes 1 and 2 of the Model Clauses as applicable.
  7. Information Obligations and Incident Management
    1. If the Data Processor becomes aware of an incident that impacts the Processing of the Personal Data that is the subject of the Agreement, it shall promptly notify the Data Controller about the incident, shall at all times cooperate with the Data Controller, and shall follow the Data Controller’s instructions with regard to such incident, in order to enable the Data Controller to perform a thorough investigation into the incident, to formulate a correct response, and to take suitable further steps in respect of the incident.
    2. The term “incident” used in Section 7(a) shall be understood to mean in any case:
      1. a complaint or a request with respect to the exercise of a data subject’s rights under EU Data Protection Law;
      2. an investigation into or seizure of the Personal Data by government officials, or a specific indication that such an investigation or seizure is imminent;
      3. any unauthorized or accidental access, processing, deletion, loss or any form of unlawful processing of the Personal Data;
      4. any breach of the security and/or confidentiality as set out  in Articles 3 and 4 of this Data Processing Agreement leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data, or any indication of such breach having taken place or being about to take place;
      5. where, in the opinion of the Data Processor, implementing an instruction received from the Data Controller would violate applicable laws to which the Data Controller or the Data Processor are subject.
    3. The Data Processor shall have in place written procedures which enable it to promptly respond to the Data Controller about an incident. Where the incident is reasonably likely to require a data breach notification by the Data Controller under applicable EU Data Protection Law, the Data Processor shall implement its written procedures in such a way that it is in a position to notify the Data Controller without undue delay and in any event shall endeavor to notify no later than 24 hours of having become aware of such an incident.
    4. Any notifications made to the Data Controller pursuant to this Article 7 shall be addressed to the employee of the Data Controller whose contact details are provided in Annex 1 of this Data Processing Agreement, and shall to the extent known contain:
      1. a description of the nature of the incident, including where possible the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned;
      2. the name and contact details of the Data Processor’s data protection officer or another contact point where more information can be obtained;
      3. a description of the likely consequences of the incident; and
      4. a description of the measures taken or proposed to be taken by the Data Processor to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
  8. Contracting with Sub-Processors
    1. The Data Controller authorises the Data Processor to engage sub-processors in the country locations for the Service-related activities specified as described in Annex 2. Data Processor shall inform the Data Controller of any addition or replacement of such sub-processors giving the Data Controller an opportunity to object to such changes
    2. Notwithstanding any authorisation by the Data Controller within the meaning of the preceding paragraph, the Data Processor shall remain fully liable vis-à-vis the Data Controller for the performance of any such subprocessor that fails to fulfil its data protection obligations.
    3. The consent of the Data Controller pursuant to Section 8(a) shall not alter the fact that consent is required under Section 6 for the engagement of sub-processors in a country outside the European Economic Area without a suitable level of protection.
    4. The Data Processor shall ensure that the sub-processor is bound by the same data protection obligations of the Data Processor under this Data Processing Agreement, shall supervise compliance thereof, and must in particular impose on its sub-processors the obligation to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of EU Data Protection Law.
  9. Assistance to Data Controller
    1. The Data Processor shall assist the Data Controller for the fulfilment of the Data Controller’s obligation to respond to requests for exercising the data subject’s rights under EU Data Protection Law.
    2. The Data Processor shall assist the Data Controller in ensuring compliance with the obligations pursuant to Section 4 and prior consultations with supervisory authorities required under applicable EU Data Protection Law taking into account the nature of processing and the information available to the Data Processor.
    3. The Data Processor shall make available to the Data Controller information necessary to demonstrate compliance with the Data Processor’s obligations.
  10. Liability and Indemnity
    1. The Data Processor indemnifies the Data Controller and holds the Data Controller harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the Data Controller to the extent resulting from a breach of this Data Processing Agreement and/or EU Data Protection Law by the Data Processor. The Data Controller indemnifies the Data Processor and holds the Data Processor harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the Data Processor to the extent resulting from a breach of this Data Processing Agreement and/or the EU Data Protection Law by the Data Controller.
  11. Termination
    1. Termination or expiration of this Data Processing Agreement shall not discharge the Data Processor from its confidentiality obligations pursuant to Section 3.
    2. The Data Processor shall process Personal Data until the date of termination of the agreement, unless instructed otherwise by the Data Controller, or until such data is returned or destroyed on instruction of the Data Controller.
  12. Miscellaneous
    1. In the event of any inconsistency between the provisions of this Data Processing Addendum and the provisions of the Agreement, the provisions of this Data Processing Addendum shall prevail.
    2. This Data Processing Agreement is governed by and construed in accordance with laws of England and Wales. The parties submit to the exclusive jurisdiction of the English Courts.


Annex 1

Contact information of the data protection officer/compliance officer of AVIAA.

Alex Kimata
Associate, Milgrom Law
2000 Little Raven St., #802
Denver, CO 80202
alex.kimata@milgromlaw.com


Annex 2

Personal Data that will be processed in the scope of the Service Agreement:

Information related to the purchase and sale of Services as defined in the Agreement.

Categories of Personal Data:

Names, contact information, and information related to the operation and maintenance of private aircraft.

Types of Data Subjects:

Aircraft operators, owners, and suppliers.

Purposes of Process:
    
To analyze disaggregated data to calculate volume based discounts and administrative fees for performance of the Agreement.

 

Annex 3