Data Protection Agreement

The purpose of this agreement (the "Agreement") is to define the conditions under which Comeen, in its capacity as processor, undertakes to carry out on behalf of the Client, in its capacity as controller, the personal data processing operations (the "Personal Data") defined below, with a view to the performance of the agreements executed between Commen and the Client relating to the provision of the Comeen Play solution (hereinafter referred to as the "Contract").

Any term defined in the Contract shall have the same definition in this Agreement.

In the context of their contractual relationship, the Parties undertake to comply with the regulations in force applicable to the processing of Personal Data (the "Applicable Regulations") and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the "GDPR" Regulation) and the amended French Data Protection Act of 6 January 1978 (the "LIL").

Parties shall in this context comply with the following clauses, stipulated on the basis of Commission Implementing Decision (EU) 2021/915 of 4 June 2021 on standard contractual clauses between controllers and processors under Article 28(7) of Regulation (EU) 2016/679 of the European Parliament and of the Council.

IN LIGHT OF THE FOREGOING, PARTIES HAVE THEREFORE AGREED AS FOLLOWS: 

SECTION I

CLAUSE 1 - PURPOSE AND SCOPE

1. The purpose of these Standard Contractual Clauses (the “Clauses”) is to ensure compliance withArticle 28(3) and (4) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
2. The controller and processor listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) ofRegulation (EU) 2016/679.
3. These Clauses apply to the processing of personal data as specified in Annex II.
4.  Annexes I to III are an integral part of the Clauses.
5.  These Clauses are without prejudice to obligations to which the controlleris subject by virtue of Regulation (EU) 2016/679.
6.  These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of Regulation (EU) 2016/679.
7. The controller and processor listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679.
   

CLAUSE 2 - INVARIABILITY OF THE CLAUSES

1. The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.
2.  This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.
   

CLAUSE 3 - INTERPRETATION

1. Where these Clauses use the terms defined in Regulation (EU)2016/679, those terms shall have the same meaning as in that Regulation.
2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
3.  These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Regulation (EU) 2016/679 or in away that prejudices the fundamental rights or freedoms of the data subjects.

CLAUSE 4 - HIERARCHY

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

CLAUSE 5 - DOCKING CLAUSE

1. Any entity that is not a Party to these Clauses may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I.
2.  Once the Annexes in (a) are completed and signed, the accedingentity shall be treated as a Party to these Clauses and have the rights andobligations of a controller or a processor, in accordance with its designationin Annex I.
3. The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.

SECTION II - Obligations of the parties

CLAUSE 6 – DESCRIPTION OF PROCESSING(S)

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.

CLAUSE 7 – OBLIGATIONS OF THE PARTIES

7.1 INSTRUCTIONS

1. The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or MemberState law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.
2.  The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation(EU) 2016/679 or the applicable Union or Member State data protection provisions.

7.2   PURPOSE LIMITATION

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.

7.3   DURATION OF THE PROCESSING OF PERSONAL DATA

Processing by the processor shall only take place for the duration specified in Annex II

7.4   SECURITY OF PROCESSING

1. The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.
2.  The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.5 SENSITIVE DATA

If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.

7.6   DOCUMENTATION AND COMPLIANCE

1. The Parties shall be able to demonstrate compliance with theseClauses.
2.  The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.
3. The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation (EU) 2016/679. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on are view or an audit, the controller may take into account relevant certifications held by the processor.
4. The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.
5.  The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

7.7 USE OF SUB-PROCESSORS

1. The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least fifteen (15)days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.
2.  Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to theseClauses and to Regulation (EU) 2016/679.
3. At the controller’s request, the processor shall provide a copy ofsuch a sub-processor agreement and any subsequent amendments to the controller.To the extent necessary to protect business secret or other confidentialinformation, including personal data, the processor may redact the text of theagreement prior to sharing the copy.
4. The processor shall remain fully responsible to the controller fort he performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.
5. The processor shall agree a third party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
   

7.8 INTERNATIONAL TRANSFERS

1. Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679.
2.   The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation (EU) 2016/679 by using standard contractual clauses adopted by the Commission in accordance with of Article46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.
   

CLAUSE 8 - ASSISTANCE TO THE CONTROLLER

1. The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorized to do so by the controller.
2.  The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions.‍
3.  In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:
   1. the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;
   2. the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;
   3. the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated;
   4. the obligations in Article 32 of Regulation (EU) 2016/679.‍
4.  The Parties shall set out in Annex III the appropriate technical and organizational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

CLAUSE 9 – NOTIFICATION OF PERSONAL DATA BREACH 

In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 of Regulation (EU) 2016/679, taking into account the nature of processing and the information available to the processor.

9.1   DATA BREACH CONCERNING DATA PROCESSED BY THE CONTROLLER

In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:

1. in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);‍
2.  in obtaining the following information which, pursuant to Article33(3) of Regulation (EU) 2016/679, shall be stated in the controller’s notification, and must at least include:
   1. the nature of the personal data 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 likely consequences of the personal data breach; 
   3. the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
      
      Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
3.  in complying, pursuant to Article 34 of Regulation (EU) 2016/679, with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.

9.2   DATA BREACH CONCERNING DATA PROCESSED BY THE PROCESSOR

In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

1. a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);
2.  the details of a contact point where more information concerningthe personal data breach can be obtained;

1.  its likely consequences and the measures taken or proposed to betaken to address the breach, including to mitigate its possible adverseeffects.

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under Articles 33 and 34 of Regulation (EU) 2016/679.

SECTION III - Final provisions

CLAUSE 10 – NON-COMPLIANCE WITH THE CLAUSES AND TERMINATION

1. Without prejudice to any provisions of Regulation (EU) 2016/679, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.
2.  The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:
   1. the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;
   2. the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679;
   3. the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679.
3. The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.
4. Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.

ANNEX I

A.   List of Parties

Controller: 

The Client 

Processor:

Name: Comeen

Address: 88 Cours de Verdun, 33000 Bordeaux, France

Contact person’s name, position and contact details: Simon Cleriot - simon.cleriot@comeen.com 

ANNEX II

Description of the processing

Categories of data subjects whose personal data is processed

• Users of the Solution authorized by the Client or the beneficiaries (including their suppliers, contractors and business partners);

• Administrators of the Solution authorized by the Client or the beneficiaries.

‍

Categories of personal data processed

• Last Name;

• First Name;

• Email address;

• Telephone number;

Sensitive data processed (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

N/A

Nature of the processing

• Collection;

• Storage;

• Organization;

• Conservation;

• Access;

• Retrieval;

• Consultation;

• Copying;

• Structuring;

• Communication by transmission.

Purpose(s) for which the personal data is processed on behalf of the controller

The performance of the Contract

Duration of the processing

Duration of the Contract, in accordance with the terms defined in said Contract

For processing by (sub-) processors, also specify subject matter, nature and duration of the processing

‍

ANNEX III

Technical and organizational measures including technical and organizational measures to ensure the security of the data

Technical and organizational measures are detailed under the following address:

https://comeen.slite.page/p/EsMvo64cls/Technical-and-Organisational-Measures

 Such measures implemented as of the date of execution of this Agreement are reproduced hereunder:

1. Confidentiality

Technical measures

• All personal data are stored on our servers hosted by Google Cloud Platform
• Manual locking system
• Certified SSL encryption
• VLAN segmentation
• Separation of productive and test environment
• Every account deleted from our database is not deactivated, but permanently removed
• Regular     penetration testing
• No more personal data is collected than is necessary for the respective     purpose
• Pseudonymisation of logs

Organizational measures

• No personal data are copied or stored locally on our offices
• Visitors accompanied by employees
• Visitors' book / Visitors' protocol
• Information Security Policy
• Use of authorization concepts
• Minimum number of administrators
• Management of user rights by administrators
• Regular training of employees on data privacy measures.
• Regular monitoring of partner companies regarding data privacy measures

2. Integrity

Technical measures

• Logging of accesses and retrievals
• Detailed tracking of entries, edits and deletions, with info about the user id, IP address, client operating system and client browser.
• No personal data are copied or stored locally on our offices
• All different environments (servers and databases) are stored on distinct instances, isolated of each other
• All     SSH connections on non-production servers are made using key pairs (no passwords)
• Regular updates, especially security fixes
• Login with SSO
• Provision via encrypted connections such as sftp, https and secure cloud stores

Organizational measures

• Assignment of rights to enter, change and delete data on the basis of an authorization concept
• Documented incident response processes
• Documented and regularly tested failover procedures
• A formal process for following up on security incidents and data breaches

3. Availability and Resilience

Technical measures

• Backups are completed each day with several retention and rotation policies
• Backup monitoring and reporting
• High-availability domain hosting
• Use of secured data centers with redundant zones

Organizational measures

• Backup concept
• Load balancing
• Existence of an emergency plan
• Documented incident response processes