This Data Protection Amendment Agreement is dated as at the execution date as set out in Schedule A hereto
- Dart Enterprises Ltd. whose business address is Dart Enterprises Ltd, 89 Nexus Way, Camana Bay Grand Cayman, Cayman Islands (the "Counterparty"); and
- RF Merchant Bank & Trust Limited whose business address is at Providence House, East Hill Street, Nassau, Bahamas. ("RF").
- Pursuant to the Sponsorship Agreement entered into by the Counterparty and RF, the particulars of which are as set out in Schedule A, as supplemented, assigned, amended and restated from time to time (the “Sponsorship Agreement”) the Counterparty provides sponsorship to RF as described in the Sponsorship Agreement.
- As a part of the Sponsorship Agreement, RF will make the delegate personal data of the conference delegates available to the Counterparty. The transfer of this data will be in accordance with the applicable data protection laws namely the Bahamas Data Protection Act (2008) (“BDPA”) and the Cayman Islands Data Protection Law (2017) (“CIDPL”). The Counterparty has agreed to manage this data subject to, and in accordance with, the provisions set out below.
- The parties have therefore agreed to amend the Sponsorship Agreement as set out in this Data Protection Amendment Agreement ("DP Amendment") with effect from January 1st, 2020.
- This DP Amendment is supplemental to the Sponsorship Agreement.
It is agreed as follows:
1. Definitions and Interpretation
- Unless defined herein, capitalised terms used in this DP Amendment shall have the meaning ascribed to them in the Sponsorship Agreement.
- "Data Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data;
- "Data Processor" means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Data Controller;
- "Personal Data" means any information relating to an identified or identifiable natural person.
- In this DP Amendment, any reference to a "clause" or "annex" is, unless the context otherwise requires, a reference to a clause or annex of this DP Amendment.
2. Affect on existing data protection provisions in the Sponsorship Agreement
- It is acknowledged by both parties that the Sponsorship Agreement may contain provisions relating to each party's rights, duties, and obligations under applicable data protection law, including all associated defined terms (the “Existing Provisions”). It is further acknowledged by both parties that the DP Amendment applies to Personal Data in the scope of the applicable data protection law, and other personal data not in scope shall continue to be governed by the Existing Provisions.
- RF and the Counterparty each agree that as and from the date of this DP Amendment, the rights, duties, and obligations of each party under the applicable laws shall be as set forth in this DP Amendment.
3. Data Protection
- RF confirms it has obtained the consent from each and every data subject (as defined within the applicable law) for the Counterparty to contact the data subject directly.
- The Counterparty represents and warrants to RF that the Counterparty in its capacity as a Data Processor has the necessary expert knowledge, reliability, and resources to implement appropriate technical and organisational measures in such a manner that the processing of Personal Data it undertakes will meet the requirements of the applicable data protection laws and ensure the protection of the rights of the data subjects.
- The Counterparty hereby undertakes to comply with all its obligations as a Data Processor under the applicable data protection law, including and without limitation, the relevant obligations outlined expressly in this DP Amendment.
- The Counterparty shall act as a Data Processor. It shall only process the Personal Data for the purposes of marketing the Counterparty’s products or services[If relationships grow, we would not want to be contractually bound to cease comms. If the DS requests to be forgotten, they shall be removed from marketing mailing lists, as required.].
- The type of Personal Data that can be accessed by the Counterparty shall include data such as name and contact details , i.e. a residential address, email address and telephone number, as provided by RF.
- The Counterparty will provide all reasonable assistance to RF in meeting any requests from data subjects regarding their rights under the applicable data protection law.
- The Counterparty shall make available to RF all information necessary to demonstrate compliance with the obligations laid down in the applicable data protection laws and shall allow for and contribute to audits, including inspections, conducted by RF or an auditor mandated by RF.
- The Counterparty shall promptly notify RF after becoming aware of a Personal Data breach and provide all reasonable assistance with breach investigation, mitigation, and remediation.
- The Counterparty will provide all reasonable assistance to RF with carrying out privacy and data protection impact assessments and related consultations of data protection authorities.
- The Counterparty shall maintain records of its processing activities under this DP Amendment and shall cooperate with RF and the applicable data protection authorities and make those records available to RF, the applicable data protection authorities and any other competent regulatory authorities on request.
4. Security measures for the processing of Personal Data
- The Counterparty shall take all measures required regarding the security of the processing of Personal Data as outlined in the applicable data protection law.
- The Counterparty shall ensure that (i) any of its employees and independent contractors and (ii) any of its Permitted Processors (as defined in Clause 5.1) authorised to process the Personal Data have contractually committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- The Counterparty shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, 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 the varying likelihood and severity for the rights and freedoms of natural persons. The Counterparty shall regularly test and evaluate such measures.
- Where the processing involves the transmission of Personal Data over a network, the Counterparty shall take all appropriate security, technical security and organisational measures against the accidental loss or destruction of Personal Data and against all other unlawful forms of processing Personal Data.
- The Counterparty agrees to maintain an appropriate information security program reasonably designed to protect the Personal Data that is in the Counterparty’s possession.
- The Counterparty will provide all reasonable assistance to RF to ensure compliance with the obligations pursuant to the applicable data protection law.
5. Transmission of Personal Data by the Counterparty
- It may be necessary for the Counterparty to transfer Personal Data for processing to an agent, delegate, subcontractor or other representative of the Counterparty (which may or may not be an affiliate of the Counterparty) appointed by the Counterparty pursuant to the terms of the Sponsorship Agreement. Any such entity shall be a “Permitted Processor”. The Counterparty may only transmit Personal Data (a) to Permitted Processors with the prior written consent of RF; or (b) where required to do so under applicable law. As at the date of this DP Amendment, Personal Data will be transmitted by the Counterparty to such Permitted Processors located in such locations as is set out in the Disclosed Transmission Arrangements section of Schedule A (the “Disclosed Transmission Arrangements”) and by its execution of this DP Amendment, RF shall be deemed to have given its consent to such Disclosed Transmission Arrangements. The Counterparty shall obtain the prior written consent of RF before making any changes to the Disclosed Transmission Arrangements.
- The Counterparty shall ensure that the data protection obligations applicable to it under the applicable data protection law are contractually imposed on each Permitted Processor, in particular, providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the applicable data protection law.
- The Counterparty shall remain liable for the processing of Personal Data received from RF, which results in a breach of the applicable data protection laws.
- The Counterparty shall indemnify RF against, and hold it harmless from, any liabilities, losses, claims, costs, damages, penalties, fines, obligations, or expenses of any kind whatsoever (including reasonable fees and legal expenses) that may be incurred in connection with or arising out of any breach of the applicable data protection laws by the Counterparty in the processing of Personal Data received from RF.
- No amendment or variation of this DP Amendment shall be valid unless it is in writing and signed by or on behalf of RF and the Counterparty. Notwithstanding the foregoing, this DP Amendment may be amended unilaterally by the Counterparty’s written notice to RF to the extent that an amendment is required to ensure the Counterparty’s ongoing compliance with the applicable DP laws.
- The provisions of the Sponsorship Agreement shall save as amended in this DP Amendment, continue in full force and effect, and shall be read and construed as one document with this DP Amendment. In the event of any inconsistency between this DP Amendment and the Sponsorship Agreement, this DP Amendment shall prevail.
- This DP Amendment may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original but together constitute but one and the same instrument. Each party understands and agrees that any portable document format (PDF) file, facsimile or other reproduction of its signature on any counterpart shall be equal to and enforceable as its original signature and that any such reproduction shall be a counterpart hereof that is fully enforceable in any court or arbitral panel of competent jurisdiction.
- If any provision of this DP Amendment shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this DP Amendment which shall remain in full force and effect.
10. Law and Jurisdiction
- This DP Amendment will be governed by and construed in accordance with the laws governing the Sponsorship Agreement (“Governing Jurisdiction”), and the courts of the Governing Jurisdiction will have exclusive jurisdiction to resolve any disputes relating to the terms of this DP Amendment.