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Global Data Processing Addendum

This Data Processing Addendum (“DPA”) forms part of the SUPPLIERGATEWAY TERMS AND CONDITIONS OF USE (“TERMS”) between: SupplierGATEWAY, LLC. (“SupplierGATEWAY”) acting on its own behalf and as agent for each SupplierGATEWAY Affiliate; and each entity executing a subscription order (“Order”) with SupplierGATEWAY (the “CUSTOMER”) acting on its own behalf and as agent for each CUSTOMER Affiliate. SupplierGATEWAY and CUSTOMER are together the “Parties” and each individually is a “Party.”

The Parties have entered into an agreement pursuant to the SupplierGATEWAY Terms and Conditions of Use (“Terms”) under which SupplierGATEWAY will provide certain software (described in SupplierGATEWAY Application Descriptions) to CUSTOMER that may involve SupplierGATEWAY (or a Subcontractor) Processing CUSTOMER Personal Data on behalf of CUSTOMER (hereinafter the “Processing Services”). This Agreement applies to the Processing of CUSTOMER Personal Data (defined below) pursuant to the Processing Services.

Definitions.

Explanation:

In this DPA, the following terms will have the meanings set out in this Section 1; terms not otherwise defined in this DPA will have the meanings given to them in the Agreement.

“Authorised Subcontractor”

means (a) a Subcontractor set out in Annex 1 (Authorised Subcontractors); and (b) any additional Subcontractor consented to in writing by CUSTOMER in accordance with clause 6.1;

“Data Breach”

means any known or reasonably suspected unauthorized access to, or use, disclosure or other Processing of CUSTOMER Personal Data, as well as any loss, theft or acquisition of CUSTOMER Personal Data, or any incident that compromises the security of CUSTOMER Personal Data, including any CUSTOMER Personal Data Breach as defined under GDPR;

“Data Protection Laws”

means the applicable laws rules and regulations of any jurisdiction governing privacy, data protection, security, or the Processing of CUSTOMER Personal Data (including but not limited to the EU Data Protection Laws);

“Data Subject”

means the individual to whom the CUSTOMER Personal Data relates;

“EEA”

means the European Economic Area;

“EU Data Protection Laws”

means the legislation of an EEA country that governs the Processsing of Personal Data, including the EU General Data Protection Regulation 2016/679 (“GDPR”) and the laws implementing or supplementing the GDPR, the EU Directive on Privacy and Electronic Communications and the laws implementing or supplementing or superseding it, as well as any successor UK data protection legislation to the GDPR adopted if the UK exits the European Union;

“CUSTOMER Affiliate”

means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with the CUSTOMER, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

“CUSTOMER Customer”

means an entity that purchases goods or services from CUSTOMER or its Affiliates directly from CUSTOMER, or CUSTOMER’s agent or broker.

“CUSTOMER Personal Data”

means the Personal Data Processed by SupplierGATEWAY, any SupplierGATEWAY Affiliate, or any Subcontractor on behalf of CUSTOMER pursuant to or in connection with the Agreement;

“Personal Data”

means any information relating to an identified or identifiable natural person;

“Restricted Transfer”

means any transfer or Processing of CUSTOMER Personal Data to, by and/or amongst SupplierGATEWAY, SupplierGATEWAY Affiliate and any Subcontractor and any onward transfer of CUSTOMER Personal Data between two establishments of SupplierGATEWAY, SupplierGATEWAY Affiliate and any Subcontractor, that (a) would be prohibited by EU Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses (or any successor thereto recognized and approved by the European Commission), and/or (b) where Data Protection Law (other than EU Data Protection Law) requires adequate safeguards or contractual terms for cross-border transfers of Personal Data;

“Standard Contractual Clauses”

means the standard contractual clauses for the transfer of CUSTOMER Personal Data to processors established in third countries, as approved by the European Commission in Decision 2010/87/EU, or any set of clauses approved by the European Commission which amends, replaces or supersedes these;

“Subcontractor”

means any Data Processor (including any third party and any SupplierGATEWAY Affiliate) appointed by SupplierGATEWAY to provide Processing Services that involve the Processing of CUSTOMER Personal Data;

“Supervisory Authority”

means (a) an independent public authority which is established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Laws; and

“SupplierGATEWAY Affiliate”

means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with SupplierGATEWAY, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

Processing of Company Personal Data.

2.1 SupplierGATEWAY will (and will ensure that Subcontractors) Process and otherwise use CUSTOMER Personal Data solely on behalf of and subject to the documented instructions of CUSTOMER, unless otherwise required by applicable laws to which SupplierGATEWAY is subject, in which case SupplierGATEWAY will provide prior notice of that legal requirement to CUSTOMER to the extent permitted by applicable laws. CUSTOMER will determine the purpose and means of CUSTOMER Personal Data Processing.

2.2 CUSTOMER instructs SupplierGATEWAY to, as reasonably necessary for the provision of the Processing Services and consistent with the Agreement: (i) Process CUSTOMER Personal Data; and (ii) engage Subcontractors in compliance with Section 7 below. SupplierGATEWAY will notify CUSTOMER if it is or believes it (or any Subcontractor) will be unable to comply with the terms of this DPA or applicable Data Protection Laws. In such case, SupplierGATEWAY will, in consultation with CUSTOMER, take reasonable and appropriate steps to stop and remediate such non-compliance, and at CUSTOMER’s request will promptly cease any unauthorized Processing.

2.3 Annex 1 to this DPA sets out the subject matter and duration of the Processing, the nature and purpose of the Processing, the type of CUSTOMER Personal Data and categories of Data Subject as required by Data Protection Law, including Article 28(3) of the GDPR, as appropriate. CUSTOMER may make reasonable amendments to Annex 1 from time to time as reasonably necessary to meet those requirements, by sending an updated or an additional Annex 1 to SupplierGATEWAY.

2.4 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, SupplierGATEWAY and each SupplierGATEWAY Affiliate shall in relation to the CUSTOMER Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including as appropriate the measures referred to in Article 32(1) of the GDPR, as well as those set forth in Annex 2 to this DPA. In assessing the appropriate level of security, SupplierGATEWAY shall take account in particular of the risks that are presented by Processing, in particular from a CUSTOMER Personal Data Breach.

Reasonable Assistance.

3.1 Taking into account the nature of the Processing and the information available to SupplierGATEWAY (or a Subcontractor), SupplierGATEWAY will provide reasonable assistance to CUSTOMER to allow CUSTOMER to effectively respond to requests from Data Subjects exercising their rights under the Data Protection Laws, including to the extent applicable the rights to rectify, erase or restrict, e.g. by way of blocking the Processing of, CUSTOMER Personal Data.

3.2 SupplierGATEWAY will provide reasonable assistance to CUSTOMER with any data protection impact assessments and prior consultations with Supervisory Authorities which CUSTOMER reasonably considers to be required by Data Protection Law, taking into account the nature of the Processing by, and information available to the SupplierGATEWAY or Subcontractors.

3.3 If SupplierGATEWAY (or Subcontractor) receives a request, inquiry or complaint directly from any Data Subjects or Supervisory Authorities regarding CUSTOMER Personal Data or the Processing Services, SupplierGATEWAY shall forward such request or assertion to CUSTOMER without undue delay and in any case within 5 (five) working days.

Reliability and Confidentiality.

4.1 SupplierGATEWAY will take reasonable steps to ensure the reliability of any employee, personnel, agent, contractor, or any Subcontractor who may have access to CUSTOMER Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant CUSTOMER Personal Data, for the purposes of the Agreement, and to comply with applicable laws.

4.2 SupplierGATEWAY and each SupplierGATEWAY Affiliate will also ensure that such employees, personnel, agents, contractors, or Subcontractors are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

Audits.

5.1 SupplierGATEWAY will (and will ensure that any Subcontractor will) make available to CUSTOMER all information necessary to demonstrate compliance with SupplierGATEWAY‘s and Subcontractor’s obligations and shall allow for and contribute to audits, including inspections, conducted by CUSTOMER or another auditor mandated by CUSTOMER.

5.2 CUSTOMER shall give SupplierGATEWAY reasonable notice of any audit or inspection to be conducted under section 5.1, and shall take (and ensure that each of its mandated auditors takes) reasonable measures to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the SupplierGATEWAY’s premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. Except as otherwise required by applicable law or a relevant Supervisory Authority, any audit or inspection will be conducted within normal business hours no more than once in any calendar year.

Subcontractors.

6.1 SupplierGATEWAY will (and will ensure that any Subcontractor will) make available to CUSTOMER all information necessary to demonstrate compliance with SupplierGATEWAY‘s and Subcontractor’s obligations and shall allow for and contribute to audits, including inspections, conducted by CUSTOMER or another auditor mandated by CUSTOMER.

6.2 CUSTOMER shall give SupplierGATEWAY reasonable notice of any audit or inspection to be conducted under section 5.1, and shall take (and ensure that each of its mandated auditors takes) reasonable measures to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the SupplierGATEWAY’s premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. Except as otherwise required by applicable law or a relevant Supervisory Authority, any audit or inspection will be conducted within normal business hours no more than once in any calendar year.

Restricted Transfers.

7.1 CUSTOMER Personal Data may not be transferred across national borders without the prior written consent of CUSTOMER. CUSTOMER expressly agrees to the transfer and Restricted Transfer(s) set forth in Annex 1, subject to compliance with this Section 7. Therefore, CUSTOMER for itself and any relevant CUSTOMER Affiliates (each, as “Data Exporter”) and SupplierGATEWAY for itself and any relevant SupplierGATEWAY Affiliate (each, as “Data Importer”), concurrently with this Agreement, enter into the Standard Contractual Clauses (“SCCs”) for such approved Restricted Transfer(s) from CUSTOMER to that SupplierGATEWAY, as set forth in Annex 3. The SCCs will take effect upon the commencement of the relevant Restricted Transfer.

7.2 With respect to CUSTOMER Personal Data subject to Data Protection Laws other than EU Data Protection Laws and where such SCCs entered into hereunder apply to Subcontractors as the Data Importer, the following definitions will apply: (a) “supervisory authority” shall mean the relevant data protection regulator or other government body with equivalent supervisory authority over the data controller; and (b) references to “Member State” shall mean “jurisdiction”.

7.3 Before the commencement of any Restricted Transfer to a Subcontractor, SupplierGATEWAY or the relevant SupplierGATEWAY Affiliate will ensure that the most recent SCCs, as issued by the European Commission, have been duly and effectively incorporated into SupplierGATEWAY or SupplierGATEWAY Affiliate’s written agreement with such Subcontractor.

Data Breaches.

8.1 SupplierGATEWAY shall notify CUSTOMER without undue delay, and in any case within 48 (forty-eight) hours, upon becoming aware of or reasonably suspecting a Data Breach, and will provide CUSTOMER with sufficient information to allow CUSTOMER to meet any obligations to report a Data Breach under the Data Protection Laws. Such notification by SupplierGATEWAY shall at a minimum:

  • describe the nature of the Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of CUSTOMER Personal Data records concerned;
  • describe the likely consequences of the Data Breach; and
  • describe the measures taken or proposed to be taken to address the Data Breach.

8.2 SupplierGATEWAY shall fully co-operate with CUSTOMER and take such reasonable steps as are directed by CUSTOMER to assist in the investigation, mitigation and remediation of each Data Breach, in order to enable CUSTOMER to (i) perform a thorough investigation into the Data Breach, (ii) formulate a correct response and to take suitable further steps in respect of the Data Breach in order to meet any requirement under the Data Protection Laws.

8.3 SupplierGATEWAY shall not inform any third party without first obtaining CUSTOMER’s prior written consent, unless notification is required by applicable laws to which SupplierGATEWAY is subject, in which case SupplierGATEWAY shall to the extent permitted by such law inform CUSTOMER of that legal requirement, provide a copy of the proposed notification and consider any comments made by CUSTOMER before notifying any third party of the Data Breach.

Deletion and Return of Personal Data.

9-9.1 Within 60 days of the termination of the Agreement, or at any earlier date required by CUSTOMER, SupplierGATEWAY shall in accordance with CUSTOMER’s instructions either securely return to CUSTOMER or on CUSTOMER’s request securely destroy all CUSTOMER Personal Data. SupplierGATEWAY may retain CUSTOMER Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws. Upon request by CUSTOMER, SupplierGATEWAY shall provide written certification to CUSTOMER that it and each Subcontractor has fully complied with this Section 9.

Indemnity.

10.1 Notwithstanding any contrary provisions in the Agreement, SupplierGATEWAY indemnifies CUSTOMER and holds CUSTOMER harmless against all claims, actions, third party or Supervisory Authority claims, losses, damages and expenses incurred by CUSTOMER and arising directly or indirectly out of or in connection with a breach of this DPA by SupplierGATEWAY.

10.2 CUSTOMER is not liable for any damage or cost, either by contract or tort, towards SupplierGATEWAY or any of its Authorized Subcontractors under this DPA, except in case of gross negligence or willful misconduct.

Miscellaneous.

Choice of Jurisdiction

The Parties hereby agree to submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims arising under this DPA, including disputes regarding its existence, validity or termination.

Changes to DPA

Any changes to this DPA shall be made in writing regardless of any provisions to the contrary in the Agreement.

Conflicts or Inconsistencies

Conflicts or inconsistencies with respect to data privacy and data security will be resolved as follows: (i) in any conflict between the terms of the Agreement and this DPA, this DPA will control; and (ii) in any conflict with the terms of the DPA, the SCCs will control.

Superseding/Entire Agreement

This DPA represents the entire understanding between the Parties in relation to its subject matter and supersedes all agreements and representations made by the Parties, whether oral or written. Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA will remain valid and in force. The invalid or unenforceable provision will be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

Required Variation

If any variation is required to this DPA as a result of a change in Data Protection Law, including any variation which is required to the SCCs, then either Party may provide written notice to the other Party of that change in law. The Parties will discuss and negotiate in good faith any necessary variations to this DPA, including the SCCs, to address such changes. SupplierGATEWAY shall not require the consent or approval of any SupplierGATEWAY Affiliate to amend this DPA pursuant to this section 11.5 or otherwise.

ANNEX 1: Scope, type and purpose of Processing, type of data, group of data subjects; obligations of erasure.

Scope, type and purpose of Processing, type of data, group of data subjects

Purpose(s), Scope and type of Processing

The scope, nature and purpose of the collection, processing and/or use of the Data by the SupplierGATEWAY are described in detail in the respective SupplierGATEWAY Application Description.

Type of data collected, processed and used by SupplierGATEWAY, includes but is not limited to:

  • Supplier EIN
  • Supplier contact information
  • Supplier spend data

Group/categories of data subjects affected by Agreement data processing, includes but is not limited to:

  • CUSTOMER
  • CUSTOMER’s suppliers

Contact details of SupplierGATEWAY’s data protection officer and/or contact/representative:

Name: Forina Chandler
Email address: forina@suppliergateway.com
Phone number: 949-525-9205

Approved Subcontractors

NONE

Authorized Transfers/Restricted Transfers of CUSTOMER Personal Data

NONE

ANNEX 2: Security Measures.

Technical and organizational measures (Security Measures).

SupplierGATEWAY has implemented and will maintain a comprehensive, written information security program that materially conforms to the ISO/IEC 27001:2013 Information technology — Security techniques — Information security management systems — Requirements.

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the SupplierGATEWAY shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk in order to: (i) ensure the confidentiality, integrity and availability of CUSTOMER Personal Data as well as the resilience of IT systems and services necessary for the processing of Client Data (ii) to safeguard the CUSTOMER Personal Data from any actual or potential third party attacks or any other security gaps, and (iii) ensure that in no event may those protections be anything less than that required to comply with data protection laws and company policies . This includes in particular:

Physical Access Controls.

Measures to prevent unauthorized individuals from physically accessing the data processing systems and CUSTOMER Personal Data. Such measures will include the following:

  • key-operated security locks
  • locked doors during periods of absence
  • locked windows
  • security doors and/or security windows
  • access control system (e.g. ID card readers, magnetic cards, chip cards restricted issue of keys)
  • code locks
  • recording of entries and departures
  • access regulations for non-company personnel
  • reception, premises security staff, porter and/or gatekeeper
  • access control system, card reader (magnetic or chip card)
  • key management / documentation of key distribution
  • door protection (electronic door-opener combination lock etc.)
  • fence constructions
  • alarm system
  • video surveillance
  • establishment of secure areas
  • special server room protection

Admission Controls. 

Such measures will include the following admission controls:

  • keyboard locks
  • identification and authentication including procedural rules for issuing of passwords (minimum length, special characters, regular alteration of password)
  • restriction of unsuccessful access attempts
  • logging
    system administrator authorizations
  • locking of terminals with password protection
  • firewall
  • intrusion detection/protection systems
  • state of the art encoding procedures
  • personal and individual user-log-in to the system resp. network
  • keyword policies (description of keyword parameter concerning complexity and interval of updating)
  • BIOS-passwords
  • additional system-log-in for certain applications
  • automatically blocking of clients after certain time lapse without user activity (password protected screen saver or automatically log-off)
  • encryption of electronically stored passwords
  • storage of data carriers in lockable cabinets – data safes
  • encryption of CD/DVD-ROM, external hard drives and/or Laptops (e.g. via operating systems, True Cript, Safe Guard Easy, WinZip, PGP)
  • will be encrypted in transmission and at rest, using industry-standard cryptographic techniques and secure management of keys

Technical Access Controls.

Measures to ensure that the parties authorized to use the data processing methods can only access the CUSTOMER Personal Data which they are entitled to access. Such measures will include the following access controls:

  • identification and authentication
  • state of the art encoding procedures
  • administration of access and/or authorization rights as well as of system roles
    documentation of access rights
  • authorization routine
    evaluation / logging
    reviewing / auditing (e.g. within ISO certification or SOX Compliance)
  • Access permissions shall not allow public groups (e.g., global, world, everyone, etc.) to have read or write access to CUSTOMER Personal Data
  • No common or group system user IDs on systems where CUSTOMER Personal Data is maintained (i.e., users must be uniquely identified).
  • Review and revalidation of access rights to Personal Data at least biannually.

Transmission Control.

Measures are to be taken to ensure that CUSTOMER Personal Data cannot be read, copied, modified or removed in an unauthorized manner during their electronic transmission, transport or storage on data carriers, and that it is possible to check and ascertain to which recipients initiated and received the transmission. Such measures will include the following transmission controls:

  • marking of data carriers
  • state of the art encryption of data on data carriers or in electronic transmissions
    inventory logging and stock control of data carriers
  • specification of persons authorized to release data carriers or to undertake electronic transmissions
  • use of an electronic signature
  • specification of recipients of data
  • rules for transporting of data carriers (e.g. couriers, sealed containers)
  • installation of a VPN (Virtual Private Network)
  • cryptographic encryption of transmitted data
  • remote maintenance system
  • logging of releases and analysis of logs
  • encryption of emails
  • encryption of CD/DVD- ROM, external hard drives and/or laptops (e.g. via operating systems, True Cript, Safe Guard Easy, WinZip, PGP)
  • remote access by Personnel and others to Assets is restricted and securely managed
  • tunnelled remote access (e.g. via VPN = Virtual Private Network)
  • safe transport of physical data medium (e.g. via locked transport container)
  • secured WLAN
  • SSL-encryption for web-access

Separation Control.

Measures are to be taken which ensure that data collected for different purposes can be processed separately Such measures will include the following:

  • physical separation
  • logical separation of client data
  • separation of production and test environment
  • separated databases
  • Role-based access to data processing systems
  • Encryption of data sets stored for the same purpose
  • Separating encrypted, pseudonymized, and de-identified data from corresponding keys

Data Entry Controls.

Measures in order to ensure the integrity of processing systems and services in order to ensure that CUSTOMER Personal Data cannot be changed without detection. Such measures will include the following:

  • Logging and log analysis systems covering all system activities
  • organizational and technical safeguards for authorizations, logging and review of log files
  • Records of the data entered, changed or deleted
  • Measures for the subsequent verification if and by whom data has been entered, modified, or deleted (individuals, not user groups)
  • Individual allocation of user rights to enter, modify or remove based on a role based authorization concept
  • Archiving of paper forms from which data has been entered into systems

Availability Controls (Backup and Disaster Recovery).

Appropriate measures will be taken in order to ensure the availability of processing systems and services (Art. 32 (1) b) GDPR), and to ensure that CUSTOMER Personal Data is protected against accidental destruction or loss. SupplierGATEWAY will ensure that it has in place at all times an appropriate business continuity and disaster recovery plan for its business (the “Business Continuity Plan”) that will ensure the continued performance of its obligations under this Agreement and operational resilience generally. SupplierGATEWAY will develop and update the Business Continuity Plan from time to time and, in any event annually, in accordance with good industry practice, and test the Business Continuity Plan at least annually. Such measures will also include the following:

  • mirroring of hard drives
  • uninterruptible power supply (UPS)
  • operational readiness
    contingency plan
  • fire detectors/alarms
  • virus protection
  • firewall
  • intrusion detection/protection systems
  • redundant servers in separate location
  • physical backup in separate location
  • emergency plan
  • air conditioning of server room
  • fire- and water protection
  • appropriate archiving facility

Evaluation and Testing.

Such measures will also include the following:

  • regular internal checks and documentation to confirm compliance with instructions
  • regular training of employees with access rights
  • process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing
  • security risks are identified, and are assessed and prioritized at least annually

Pseudonymization of Personal Data.

Such measures will also include the following:

  • replacing personal data by randomly generated codes
  • separation of customer master data and customer sales data
  • separation of patient master data and patient health data

Encryption of personal data.

Such measures will also include the following:

  • encryption of emails and of all other physical or digital data carriers
  • encryption of CD/DVD- ROM, external hard drives and/or laptops (e.g. via operating systems, True Crypt, Safe Guard Easy, WinZip, PGP)
  • tunnelled remote access (e.g. via VPN = Virtual Private Network)
  • safe transport of physical data medium (e.g. via locked transport container)
  • secured WLAN
  • SSL-encryption for web-access

Third Party Risk Controls.

Measures are to be taken to ensure reliability and compliance of Subcontractors and third parties, including:

  • Appropriate due diligence of service providers (in particular with respect to IT security)
  • Conclusion of a data processing agreement with data processors
  • Implementation of a data protection officer
  • Service provider has obligated its employees to comply with confidentiality and data secrecy
  • Audit rights and continuous review of compliance
  • Documentation of technical and organizational IT security measures implemented by service provider
  • Return and final deletion of CUSTOMER Personal Data is ensured after termination of commissioned data processing
  • Background checks of employees and contractors with responsibilities for or access to CUSTOMER Personal Data, to the extent permissible under applicable law.
  • maintenance and repair of information system components is performed in a controlled and secure manner
  • Subcontractor’s network and Assets are monitored to detect vulnerabilities, threats, anomalous or unauthorized activity and other potential cyber security events (collectively “Events”) in timely manner

Incident Response Controls.

Processes and procedures are maintained and executed, to ensure timely response to detected Events, and the following activities take place according to such established processes and procedures:

  • events are investigated, understood and categorised
  • activities are performed to contain an Event, mitigate its effects and address any remaining threat or vulnerability
  • assets and CUSTOMER Personal Data affected are restored, CUSTOMER is notified and other appropriate mitigating actions are taken
  • response and recovery activities are documented
  • policies and procedures are routinely reviewed and updated to incorporate lessons learned and address potential threats and vulnerabilities
  • restoration activities are coordinated with the CUSTOMER where CUSTOMER Personal Data has been impacted

ANNEX 3: Standard Contractual Clauses.

These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws.

Data Exporter:

CUSTOMER entered in the Agreement

And

Data Importer: SupplierGATEWAY, LLC

Address: 601 N. Parkcenter Drive, Suite 102, Santa Ana, CA 92705

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the Data Exporter to the Data Importer of the personal data specified in Appendix 1.

Background

The Data Exporter has entered into a Data Processing Addendum (“DPA”) with the Data Importer. Pursuant to the terms of the DPA, it is contemplated that Processing Services provided by SupplierGATEWAY will involve the transfer of personal data to Data Importer in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the parties have executed these Clauses.

Clause 1

Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ will have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and ‘supervisory authority’ means relevant data protection regulator or other government body with equivalent supervisory authority over the data controller

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the Data Exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC” are deleted.]

(d) ‘the subprocessor’ means any processor engaged by the Data Importer or by any other subprocessor of the Data Importer who agrees to receive from the Data Importer or from any other subprocessor of the Data Importer personal data exclusively intended for processing activities to be carried out on behalf of the Data Exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the jurisdiction in which the Data Exporter is is established;

(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the Data Exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the Data Importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the Data Exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the Data Exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the Data Exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor will be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the Data Exporter

The Data Exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the jurisdiction where the Data Exporter is established) and does not violate the relevant provisions of that jurisdiction;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the Data Importer to process the personal data transferred only on the Data Exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the Data Importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to these Clauses;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “within the meaning of Directive 95/46/EC” are deleted.]

(g) to forward any notification received from the Data Importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the Data Exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the Data Importer

The Data Importer agrees and warrants:

(a) to process the personal data only on behalf of the Data Exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the Data Exporter of its inability to comply, in which case the Data Exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the Data Exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the Data Exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the Data Exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii) any accidental or unauthorized access, and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

(e) to deal promptly and properly with all inquiries from the Data Exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the Data Exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which will be carried out by the Data Exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the Data Exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which will be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the Data Exporter;

(h) that, in the event of subprocessing, it has previously informed the Data Exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the Data Exporter.

Clause 6

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the Data Exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the Data Exporter, arising out of a breach by the Data Importer or its subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the Data Exporter has factually disappeared or ceased to exist in law or has become insolvent, the Data Importer agrees that the data subject may issue a claim against the Data Importer as if it were the Data Exporter, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.  The Data Importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the Data Exporter or the Data Importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the Data Exporter or the Data Importer, unless any successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor will be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

  1. The Data Importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the Data Importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the jurisdiction in which the Data Exporter is established.

  1. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

  1. The Data Exporter agrees to deposit a copy of these Clauses with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the Data Importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the Data Exporter under the applicable data protection law.
  3. The Data Importer will promptly inform the Data Exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the Data Importer, or any subprocessor, pursuant to paragraph 2. In such a case the Data Exporter will be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses will be governed by the law of the jurisdiction in which the Data Exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.

Clause 11

Subprocessing

  1. The Data Importer will not subcontract any of its processing operations performed on behalf of the Data Exporter under the Clauses without the prior written consent of the Data Exporter. Where the Data Importer subcontracts its obligations under the Clauses, with the consent of the Data Exporter, it will do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the Data Importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the Data Importer will remain fully liable to the Data Exporter for the performance of the subprocessor’s obligations under such agreement.
  2. The prior written contract between the Data Importer and the subprocessor will also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the Data Exporter or the Data Importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law. Such third-party liability of the subprocessor will be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 will be governed by the law of the jurisdiction in which the Data Exporter is established.
  4. . The Data Exporter will keep a list of subprocessing agreements concluded under the Clauses and notified by the Data Importer pursuant to Clause 5 (j), which will be updated at least once a year. The list will be available to the Data Exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services, the Data Importer and the subprocessor will, at the choice of the Data Exporter, return all the personal data transferred and the copies thereof to the Data Exporter or will destroy all the personal data and certify to the Data Exporter that it has done so, unless legislation imposed upon the Data Importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the Data Importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The Data Importer and the subprocessor warrant that upon request of the Data Exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix I to the Standard Contractual Clauses.

Data Exporter

The Data Exporter is:

A company that has engaged Data Importer to provide the Processing Services as described in the DPA.

Data Importer

The Data Importer is:

A company that has engaged Data Exporter to provide the Processing Services as described in the DPA.

Data subjects

The personal data transferred concern the following categories of data subjects:

Set forth in Annex 1 to the DPA.

Categories of data

The personal data transferred concern the following categories of data:

Set forth in Annex 1 to the DPA.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data:

Set forth in Annex 1 to the DPA.

Processing operations

The personal data transferred will be subject to the processing activities as set forth in the DPA and SupplierGATEWAY Terms and Conditions Of Use, effective the effective date of the applicable Sales Order.

Appendix II to the Standard Contractual Clauses.

Description of the technical and organisational security measures implemented by the Data Importer in accordance with Clauses 4(c) and 5(c):

The parties agree that Data Importer will comply with the security requirements set forth in Annex 2 to the DPA.