To sign and execute this agreement as a Comeet customer please contact our support at: firstname.lastname@example.org
WHEREAS, pursuant to the Agreement, Comeet provides Customer access to use Comeet’s collaborative recruiting and applicant tracking platform (the “Platform”);
WHEREAS, Privacy and data protection laws warrant special contractual arrangements;
WHEREAS, in the course of providing the services pursuant to the Agreement Comeet may process Personal Data on Customer’s behalf as the Platform involves processing certain Personal Data of employees and employment candidates of Customer, therefore the parties wish to regulate Comeet’s processing of such Personal Data, through this Data Processing Addendum (the “Addendum”).
THEREFORE, the parties have agreed as follows:
1.1. “Controller” or “Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data. For the purposes of this Addendum only, and except where indicated otherwise, the term “Controller” and/or “Data Controller” shall include yourself, the Organization and/or the Organization’s Authorized Affiliates.
1.2. “Data Protection Law” means the General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”).
1.3. “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
1.4. “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. For the avoidance of doubt, Customer's business contact information is not by itself deemed to be Personal Data subject to this Addendum.
1.5. “Process(ing)” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.6. “Processor” or “Data Processor” means the entity which Processes Personal Data on behalf of the Controller.
1.7. “Sub-processor” means any Processor engaged by Comeet and/or Comeet affiliates and subsidiaries that processes Personal Data when Comeet providing the services to the Customer.
1.8. “User(s)” means employees of Customer and such other individuals who use the Platform for and on behalf of Customer.
2. ROLES OF THE PARTIES
2.1. With respect to those activities of Comeet as a ‘Data Processor’ (as this term is defined and used in Data Protection Law), Comeet will Process the Personal Data only on Customer’s behalf and for as long as Customer instructs Comeet to do so, including, as set forth in this Addendum. Customer and Comeet are each responsible for complying with the Data Protection Law applicable to them in their roles as Data Controller and Data Processor, respectively.
2.2. With respect to those activities of Comeet as a Data Processor, Comeet will Process the Personal Data only on instructions from Customer that are provided through the Platform’s various controls and configuration options, unless Comeet is otherwise required to do so by law to which it is subject (and in such a case, Comeet shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest). Comeet shall inform Customer if, in Comeet’s opinion, an instruction is in violation of Data Protection Law. Customer may use the Platform’s various controls and configuration options to assist it in connection with its obligations under the Data Protection Law and any other applicable law. Additional instructions of the Customer outside the scope of the Platform’s control and configuration options require prior and separate agreement between Customer and Comeet, including agreement on additional fees (if any) payable to Comeet for executing such instructions. Comeet shall be entitled to decline to follow Customer’s instructions which are outside the scope of the Platform’s control and configuration options, without any liability to Customer. In such case, Customer may, as its sole remedy, terminate this Addendum and the Agreement, subject to payment of fees for the Services provided by Comeet.
3. PROCESSING ACTIVITIES
3.1. The subject matter and purposes of the Processing activities are the provision of the Platform as necessary to perform the services pursuant to the Agreement, as further instructed by Customer in its use of the Platform, this Addendum and/or other contracts executed by the Parties, including maintenance, support, enhancement and deployment of the same.
3.2. The Personal Data Processed may include, without limitation: Name, contact information, biographical and C.V. information, photos, interview scheduling, email communications with candidates/applicants, and any other type of candidate and recruiting process-related information and assessments submitted or uploaded by Customer, Customer’s candidates and any other third party acting on behalf of Customer. Names, titles and contact information of Customer’s Users.
3.3. The Data Subjects about whom Personal Data is Processed are: Customer’s job applicants and candidates; Users of the Platform (e.g., employees of Customer and such other individuals who use the Platform for and on behalf of Customer).
3.4. Duration of Processing. Subject to any Section of this Addendum and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, Comeet will Process Personal Data for the duration of the Agreement, unless otherwise agreed between the parties or required by applicable law.
3.5. Customer hereby commits to undertake the following obligations, in accordance with the Data Protection Law and/or any other data privacy and data security laws and regulations applicable to Customer, and at a minimum:
3.5.1. Obtain and maintain any and all valid and lawful, authorizations, permissions and informed consents, including, without limitation, those of individuals about whom the Platform may process Personal Data or personally identifiable information, as may be necessary under applicable laws and regulations, in order to allow Comeet to lawfully collect, handle, retain, process and use the processed data within the scope of the Platform;
3.5.2. Substantiate the legal basis for collection and use of any and all Personal Data provided or transferred to Comeet, whether directly by the Customer or indirectly by a third party retained by and operating for the benefit of the Customer. Customer shall also substantiate the legal basis for all personal data processing it instructs Comeet to perform pursuant to the Agreement, at all times; and
3.6. To the extent that the Customer will request to receive professional services and/or to use the Comeet Elastic Recruitment Services (see references here: https://help.comeet.com/en/articles/5144286-comeet-elastic-recruitment-service-agreement-cer), and the Customer requests Comeet to have a privacy-related agreement in place, this Addendum shall apply to the such services (to the extent that Comeet shall be considered a data processor and the Customer shall be considered a data controller).
3.7. Customer hereby agrees and understands that Customer is solely and fully responsible allowing any integration in Comeet’s Platform with any third party vendor or system that the Customer operates and the Customer will allow any sharing, use and/or Process of Personal Data by or with such third parties. If the Customer needs any data sharing agreement with any of the integration partners, the Customer is the responsible party to execute such data sharing agreement between the parties. For more information, please read Comeet’s terms for the integration of third party platforms: https://help.comeet.com/en/articles/3116920-terms-for-integrating-with-third-party-service.
3.8. Notwithstanding anything to the contrary in any agreement between the parties, while Comeet provides tools that facilitate the customer with complying with various laws and regulations, the Customer is the only responsible party to determine how to utilize such tools in order to comply with its own requirements and obligations under applicable laws and regulations. Comeet is not offering and/or giving legal advice and/or ensuring compliance with any applicable laws and regulations. The Customer shall seek legal advice with respect of its own compliance with applicable laws and regulations, including, without limitation, Data Protection Law.
4. COMEET’S EMPLOYEES
4.1. Comeet will ensure that its staff authorized to Process the Personal Data are a) suitable for such processing; b) are provided with access to the Personal Data on a "least privilege" and "need to know" basis; c) have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and d) receive privacy and data protection training.
4.2. Comeet may disclose and Process the Personal Data (a) as permitted hereunder (b) to the extent required by a court of competent jurisdiction or other Supervisory Authority and/or otherwise as required by applicable laws or applicable Data Protection Law (in such a case, Comeet shall inform the Customer of the legal requirement before the disclosure, unless that law prohibits such information on important grounds of public interest), or (c) on a “need-to-know” basis under an obligation of confidentiality to legal counsel(s), data protection advisor(s), accountant(s), investors or potential acquirers.
5. DATA SUBJECT REQUESTS
5.1. Comeet, through the Platform’s various control and configuration options available to Customer, will follow Customer’s instructions to accommodate Data Subjects’ requests to exercise their rights in relation to their Personal Data, including accessing their data, correcting it, restricting its processing or deleting it (“Data Subject Requests”). If Comeet receives a Data Subject Request from a Data Subject, Comeet will notify and pass on to Customer such Data Subject Request that it receives regarding Personal Data Processed by Comeet.
6. SECURITY AND AUDITS
6.1. Comeet shall prepare, implement and keep up to date a market-standard information security policy in accordance with the requirements of the Data Protection Laws (the “IT Security Policy”)which Customer can request a copy of from Comeet. . In Processing Personal Data, Comeet will implement appropriate technical and organizational measures to protect the Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access in accordance with Comeet’s IT Security Policy. Comeet will provide Customer means to utilize pseudonymization as a security safeguard in respect of Personal Data. In particular, Comeet will use reasonable industry accepted security measures , such as: a) monitoring and retaining logs of the access of its staff to Comeet's Platform upon which Customer's personal data is processed; b) using reasonable access control and authentication measures with respect to its users(Comeet personnel); c) ensuring reasonable physical and environmental controls on its premises; d) implementing as necessary reasonable encryption methods with respect to data which is stored on Comeet's Platform in transit and at rest and e) completing periodical reasonable vulnerability scans and risk assessments. Such measures are subject to change at Comeet's sole consideration, provided such measures remain compliant with applicable laws.
6.2. Comeet shall allow for and contribute to audits, including carrying out inspections on Comeet’s business premises conducted by Customer or another qualified auditor mandated by Customer (which shall not be a competitor of Comeet) in order to establish Comeet’s compliance with this Addendum. Such audits and/or inspections shall be conducted at Customer's sole cost and expense, during normal business hours and subject to prior written notice to Comeet of at least 30 days as well as appropriate confidentiality undertakings by Customer and/or auditor covering any and all information obtained by and/or made available to and/or created by the Customer and/or the auditor during the performance of the audit, including the audit results (the "Audit Information"). For avoidance of doubt, the Customer and/or auditor shall maintain the Audit Information strictly confidential and shall not share any of the Audit Information with any third party without Comeet’s prior written consent. The audit results and findings shall be shared in full with Comeet. If such audits entail material costs or expenses to Comeet, the parties shall first come to agreement on Customer reimbursing Comeet for such costs and expenses. Notwithstanding anything to the contrary, such audits and/or inspections shall not contain any information, including, without limitation, Personal Data that does not belong to Customer.
6.3. Comeet will make available to Customer all information in its disposal reasonably required by Customer to demonstrate compliance with the obligations under Data Protection Law related to the Processing activities under this Addendum. Comeet shall be entitled to provide to Customer a copy of an annual audit report from an independent reputable third party regarding Comeet’s data processing and data protection measures, as a substitute for the aforementioned audit detailed in section 6.2 above. The audit report shall be obtained based on a recognized standard for such audit reports (e.g. ISAE 3000 or SSAE-SOC 2).
7.1. Customer acknowledges and agrees that Comeet uses the sub-processors listed in http://support.comeet.co/comeet-sub-processors to Process Personal Data.
7.2. Customer hereby authorizes Comeet to engage Sub-Processors for carrying out specific processing activities of the Platform, provided that Comeet informs Customer at least 5 days in advance of any new or substitute sub-processor, in which case Customer shall have the right to object, on reasoned grounds (related to Data Protection Laws), to that new or replaced sub-processor. Failure to object to such Sub-processor in writing within five (5) days following Comeet’s notice shall be deemed as acceptance of the Sub-processor. In the event Customer reasonably objects to a Sub-processor, as permitted in the preceding sentences, Comeet will use reasonable efforts to make available to Customer a change in the services or recommend a commercially reasonable change to Customer’s use of the services to avoid Processing of Personal Data by the objected-to Sub-processor without unreasonably burdening the Customer. If Comeet is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may, as a sole remedy, terminate the applicable Agreement and this Addendum with respect only to those services which cannot be provided by Comeet without the use of the objected-to Sub-processor by providing written notice to Comeet provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Comeet. Until a decision is made regarding the Sub-processor, Comeet may temporarily suspend the Processing of the affected Personal Data. Customer will have no further claims against Comeet due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the Addendum in the situation described in this paragraph.
7.3. This Section 7 shall not apply to subcontractors of Comeet which provide ancillary services to support the performance of this Addendum. This includes, for example, telecommunication services, maintenance and user service, cleaning staff, or auditors.
7.4. Comeet will procure that the Sub-processors Process the Personal Data in a manner consistent with Comeet’s obligations under this Addendum In accordance with Art. 28 para 4 GDPR, the agreement with the Sub-processor shall contain the similar data protection obligations as this Addendum.
8.1. Transfers to countries that offer adequate level of data protection. Personal Data may be transferred from the EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland) and the United Kingdom (collectively, “EEA”) to countries that offer adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the Union, the Member States or the European Commission (“Adequacy Decisions”), without any further safeguard being necessary.
8.2. Transfers to other countries. If the Processing of Personal Data includes transfers from the EEA to countries outside the EEA which do not offer adequate level of data protection or which have not been subject to an Adequacy Decision (“Other Countries”), the Parties shall comply with Chapter V of the GDPR, including, if necessary, executing the standard data protection clauses adopted by the relevant data protection authorities of the EEA, the Union, the Member States or the European Commission or comply with any of the other mechanisms provided for in the GDPR for transferring Personal Data to such Other Countries. To the maximum extent permitted by law, to the extent that Customer and Comeet will use the Standard Contractual Clauses as a mechanism to transfer Customer Personal Data, the rights and obligations of the parties shall be performed in accordance with, and subject to, this Addendum. Schedule 1 to this Addendum includes the Standard Contractual Clauses to be executed between Comeet and Customer.
9. PERSONAL DATA BREACH
9.1. Comeet shall without undue delay notify Customer of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data (“Personal Data Breach”) that it becomes aware of regarding Personal Data controlled by Customer that Comeet Processes pursuant to the Agreement. Comeet shall make reasonable efforts to identify the cause of such Personal Data Breach and take those steps as Comeet deems necessary, possible and reasonable in order to remediate the cause of such a Personal Data Breach to the extent the remediation is within Comeet reasonable control. Such notification will include the relevant details known to Comeet regarding the types of Personal Data and number of Data Subjects affected as well as the cause of the Personal Data Breach and the steps taken to rectify it. Customer acknowledges that information which is not available to Comeet will be provided to Customer in phases. Comeet will use reasonable commercial efforts to mitigate the Personal Data Breach and prevent its recurrence. Customer and Comeet will cooperate in good-faith on issuing any statements or notices regarding such Personal Data Breach, to relevant supervisory authorities and Data Subjects, however Customer remains responsible for the submission of such notifications.
10. COMEET’S ASSISTANCE
10.1. Comeet will reasonably assist Customer upon request with reasonable prior notice, with the eventual preparation of data privacy impact assessments and prior consultation as appropriate, provided, however, that if such assistance entails material costs or expenses to Comeet, the parties shall first come to agreement on Customer reimbursing Comeet for such costs and expenses.
10.2. Comeet will provide Customer prompt notice of any request it receives from authorities to produce or disclose Personal Data it has Processed on Customer’s behalf, so that Customer may contest or attempt to limit the scope of production or disclosure request, unless legally prohibited.
11. DELETION OF PERSONAL DATA
11.1. Upon Customer’s request, Comeet will delete the Personal Data it has Processed on Customer’s behalf under this Addendum, or, at Customer’s choice, use the Platform’s tools to obtain the data before its deletion, and upon Customer’s request, will furnish written confirmation that the Personal Data has been deleted pursuant to this section. In any event, to the extent required or allowed by applicable law, Comeet may retain one copy of the Personal Data for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or to comply with applicable laws and regulations.
12. CALIFORNIA CONSUMER PRIVACY ACT
12.1. This Section applies to the extent that the Platform involves processing personal information governed by the California Consumer Privacy Act of 2018 (“CCPA”) (Cal. Civ. Code §1798.100 et seq.). The following terms shall have the meaning attributed to under the CCPA: “consumer”, “personal information”, “processing”, “sell”, and “service provider”.
12.2. Comeet shall not retain, use or disclose Customer’s personal information for: (i) any purpose other than properly operate the Platform and related services for Customer or as reasonably necessary to provide the Platform and related services to Customer; (ii) ‘selling’ Customer’s personal information; and (iii) retaining, using or disclosing the Customer’s personal information outside of the direct business relationship between the parties. Comeet certifies that it understands the restriction specified in this subsection and will comply with it. Notwithstanding the foregoing, Comeet may use, disclose, or retain Customer personal information to: (i) transfer the personal information to other Comeet’s entities (including, without limitation, affiliates and subsidiaries), service providers, third parties and vendors, in order to provide the Platform and Comeet services to Customer; (ii) to comply with applicable laws; (iii) to defend legal claims or comply with a law enforcement investigation; (ii) for internal use by Comeet to build or improve the quality of its services and/or for any other purpose permitted under the CCPA; (iii) to detect data security incidents, or protect against fraudulent or illegal activity; and (iv) collect and analyze anonymous information.
12.3. The Platform’s various control and configuration options available to Customer are designed to help the Customer accommodate consumer requests seeking to exercise their rights under the CCPA. If Comeet receives a request from a consumer about his or her personal information, Comeet shall not comply with the request itself, and shall promptly inform the consumer that Comeet’s basis for denying the request is that Comeet is merely a service provider that follows Customer’s instructions, and promptly inform the consumer that they should submit the request directly to the Customer and provide the consumer with the Customer’s contact information.
13.1. For the avoidance of doubt, this Addendum does not apply to Comeet’s processing of Customer’s personal information for any of the following:
13.1.1. Administration of the contractual relationship with the Customer (including liaising with Customer’s staff, billing and collecting fees, enforcing the Agreement);
13.1.2. Comeet’s marketing activities to the Customer;
13.1.4. Where Comeet is required, or reasonably believes it is required, by law, to share or disclose information, such as, by way of example only, pursuant to a subpoena, order, or decree, issued by a competent judicial or administrative authority. To the extent legally permitted, Comeet will provide the Customer prompt written notice of such obligation and shall reasonably cooperate with the Customer, at the Customer’s expense, as required to obtain confidential treatment for such information.
13.2. All notices required or contemplated under this Addendum to be sent by Comeet will be sent either by electronic mail to Customer to the email address that Comeet has on file for the Customer’s main contact person, or, at Comeet’s choice, through In-app notices.
13.3. This Addendum cannot, in principle, be terminated separately to the Agreement, except where the Processing ends before the termination of the Agreement, in which case, this Addendum shall automatically terminate. In case that Comeet will retain any Personal Data (in accordance with section 11), this Addendum shall remain in effect until such retention ends.
13.4. This Addendum shall prevail in the event of inconsistencies between it and the Agreement between the parties or subsequent agreements entered into or purported to be entered into by the parties after the date of this Addendum – except where explicitly agreed otherwise in writing.
13.5. The parties’ liability under this Addendum shall be pursuant to the liability clauses in the Agreement.
STANDARD CONTRACTUAL CLAUSES
Controller to Processor
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements 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 (General Data Protection Regulation) for the transfer of data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘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 purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all 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.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer 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 (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for 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 a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 5 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body, at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
[Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] 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.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b)The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Belgium (specify Member State).
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Brussels, Belgium (specify Member State).
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
EXPLANATORY NOTE: It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
A. LIST OF PARTIES
Role (controller/processor): Data Controller
Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union.
Role (controller/processor): Data Processor
Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
As referenced in Section 3 of this Addendum
Categories of personal data transferred
As referenced in Section 3 of this Addendum
Sensitive data transferred (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.
As referenced in Section 3 of this Addendum
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
As referenced in Section 3 of this Addendum
Nature of the processing
As referenced in Section 3 of this Addendum
Purpose(s) of the data transfer and further processing
As referenced in Section 3 of this Addendum
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
As agreed in Section 13.3 of this Addendum
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
As agreed in this Addendum
C. COMPETENT SUPERVISORY AUTHORITY
The competent supervisory authority as identified in Clause 13
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
EXPLANATORY NOTE: The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.
Comeet’s technical and organizational measures are available here: https://help.comeet.com/en/articles/3110427-security-and-availability
LIST OF SUB-PROCESSORS
EXPLANATORY NOTE: This Annex must be completed in case of the specific authorization of sub-processors (Clause 9(a), Option 1).
The controller has authorized the use of the following sub-processors: https://help.comeet.com/en/articles/3132004-comeet-sub-processors