Data Processing Agreement (Ariba Network Service)

Ariba Network Data Processing Exhibit enGLOBAL.v.10-2018

Data Processing Agreement (Ariba Network services)

(Data Controller to Data Processor Agreement)

1, BACKGROUND

1.1 Purpose and Application.This Data Processing Agreement (Ariba Network services) (the "Exhibit" or "DPA") shall become an integral part of the Terms of Use (Suppliers) or Terms of Use (Buyers) - SAP Ariba Discovery, as applicable, between your company ("You" under the Agreement, "Customer" in this Exhibit) and Ariba, Inc. ("SAP Ariba") under this Exhibit)(the "Agreement"). This DPA applies to Personal Data processed by SAP Ariba and its Subprocessors in connection with its provision of the Online Service(s). This DPA does not apply to non-production environments of the Online Service if such environments are made available by SAP Ariba, and Customer shall not store Personal Data in such environments. Notwithstanding other statements in this Section, this DPA does not apply to Customer relationship information (e.g. billing information and administrative contact name and email address) obtained by SAP Ariba when a company registers on the Ariba Network or Ariba Discovery services. SAP Ariba's responsibilities as a controller for personal data that is provided by a customer as part of customer relationship information is clarified in the Privacy Statement for SAP Ariba found at http://www.ariba.com/legal/privacy-policy

1.2 Structure. Appendices 1 and 2 are incorporated into and form part of this DPA. They set out the agreed subject-matter, the nature and purpose of the processing, the type of Personal Data, categories of data subjects and the applicable technical and organizational measures.

1.3 GDPR. SAP Ariba and Customer agree that it is each party's responsibility to review and adopt requirements imposed on Controllers and Processors by the General Data Protection Regulation 2016/679 ("GDPR"), in particular with regards to Articles 28 and 32 to 36 of the GDPR, if and to the extent applicable to Personal Data of Customer/Controllers that is processed under the DPA. For illustration purposes, Appendix 3 lists the relevant GDPR requirements and the corresponding sections in this DPA.

1.4 Governance. As relevant under the Data Protection Law, SAP Ariba acts as a Processor and Customer and those entities that it permits to use the Online Service act as Controllers under the DPA. Customer acts as a single point of contact and is solely responsible for obtaining any relevant authorizations, consents and permissions for the processing of Personal Data in accordance with this DPA, including, where applicable approval by Controllers to use SAP Ariba as a Processor. Where authorizations, consent, instructions or permissions are provided by Customer these are provided not only on behalf of the Customer but also on behalf of any other Controller using the Online Service. Where SAP Ariba informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Online Service and it is Customer's responsibility to forward such information and notices to the relevant Controllers.

2. 2. SECURITY OF PROCESSING

2.1 Appropriate Technical and Organizational Measures. SAP Ariba has implemented and will apply the technical and organizational measures set forth in Appendix 2. Customer has reviewed such measures and agrees that as to the Online Service selected by Customer in the Order Form the measures are appropriate taking into account the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data

2.2 Changes. SAP Ariba applies the technical and organizational measures set forth in Appendix 2 to SAP Ariba's entire customer base hosted out of the same Data Center and receiving the same Online Service. SAP Ariba may change the measures set out in Appendix 2 at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.

3. SAP ARIBA OBLIGATIONS

3.1 Instructions from Customer. SAP Ariba will process Personal Data only in accordance with documented instructions from Customer. The Agreement (including this DPA) and the product documentation constitutes such documented initial instructions and each use of the Online Service then constitutes further instructions. SAP Ariba will use reasonable efforts to follow any other Customer instructions, as long as they are required by Data Protection Law, technically feasible and do not require changes to the Online Service. If any of the before-mentioned exceptions apply, or SAP Ariba otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, SAP Ariba will immediately notify Customer (email permitted).

(a) Instructions to Send Documents. When SAP Ariba acts on Customer's instruction to send documents to a trading partner selected by Customer who is using the Online Service to receive documents from Customer, regardless of the country or territory in which the trading partner may be located, such routing shall not be deemed "subprocessing" by SAP Ariba nor shall it be considered as a "transfer" to the trading partner's country for the purposes of this DPA, specifically Section 7.2.

3.2 Processing on Legal Requirement. SAP Ariba may also process Personal Data where required to do so by applicable law. In such a case, SAP Ariba shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.

3.3 Personnel. To process Personal Data, SAP Ariba and its Subprocessors shall only grant access to authorized personnel who have committed themselves to confidentiality. SAP Ariba and its Subprocessors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures.

3.4 Cooperation. At Customer's request, SAP Ariba will reasonably cooperate with Customer and Controllers (if applicable) in dealing with requests from Data Subjects or regulatory authorities regarding SAP Ariba's processing of Personal Data or any Personal Data Breach. SAP Ariba shall notify the Customer as soon as reasonably practical about any request it has received from a Data Subject in relation to the Personal Data processing, without itself responding to such request without Customer's further instructions, if applicable. SAP Ariba shall provide functionality that supports Customer's ability to correct or remove Personal Data from the Online Service, or restrict its processing in line with Data Protection Law. Where such functionality is not provided, SAP Ariba will correct or remove by request any Personal Data, or restrict its processing, in accordance with the Customer's instruction and Data Protection Law.

3.5 Personal Data Breach Notification. SAP Ariba will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide reasonable information in its possession to assist Customer to meet Customer's obligations to report a Personal Data Breach as required under Data Protection Law. SAP Ariba may provide such information in phases as it becomes available. Such notification shall not be interpreted or construed as an admission of fault or liability by SAP Ariba.

3.6 Data Protection Impact Assessment. If, pursuant to Data Protection Law, Customer (or its Controllers) are required to perform a data protection impact assessment or prior consultation with a regulator, at Customer's request, SAP Ariba will provide such documents as are generally available for the Online Service (for example, this DPA, the Agreement, audit reports or certifications). Any additional assistance shall be mutually agreed between the Parties.

4. DATA EXPORT AND DELETION

4.1 Export and Retrieval by Customer. During the Subscription Term and subject to the Agreement, Customer can access its Personal Data at any time. Customer may export and retrieve its Personal Data in a standard format. Export and retrieval may be subject to technical limitations, in which case SAP Ariba and Customer will find a reasonable method to allow Customer access to Personal Data.

4.2 Deletion. Before the Subscription Term expires, Customer may use SAP Ariba's self-service export tools (as available) to perform a final export of Personal Data from the Online Service (which shall constitute a "return" of Personal Data). The Online Service also offers some features to enable the customer administrator to remove or anonymize user records. At the end of the Subscription Term or deactivation or termination of a Customer's Online Service account, and after the period of any required retention by SAP Ariba for determining usage for billing purposes, Customer instructs SAP Ariba to delete the Personal Data goverened by this DPA remaining on servers hosting the Online Service within a reasonable time period in line with Data Protection Law unless applicable law requires retention.

5. CERTIFICATIONS AND AUDITS

5.1 (a) Certifications and Audit Reports. For the production systems which run the Online Service itself and during the term of the Agreement, as evidence of its compliance with the technical and organizational measures, SAP Ariba shall maintain, at its own expense, applicable certifications or audit reports. Unless provided otherwise in the Agreement or terms for an Optional Service, SAP Ariba engages an internationally recognized independent third party auditor to review the measures in place in protection of the Online Service(s). Certifications may be based on ISO 27001 or other standards (scope as defined in certificate). For certain SAP Ariba Online Services, SAP Ariba performs regular audits (at least annually) via certified auditors to provide a valid SOC 1 Type 2 (SSAE 16 or ISAE 3402) and/or SOC 2 Type 2 report and/or an ISO27001 certification. Upon Customer's request, SAP Ariba shall inform the Customer about the applicable certifications and audit standards available for the Online Service concerned. Other documents that are required by the Data Protection Law will be provided to the Customer by request.

(b) Customer Audit. Customer or its independent third party auditor reasonably acceptable to SAP Ariba (which shall not include any third party auditors who are either a competitor of SAP Ariba or not suitably qualified or independent) may audit SAP Ariba's control environment for the Online Services and security practices relevant to Personal Data processed by SAP Ariba only if such direct right is required by the Data Protection Law and the materials provided by SAP Ariba in 5.1(a) are insufficient for the inquiry, and then not more than once in any twelve month period.

5.2 Other Controller Audit. Any other Controller may audit SAP Ariba's control environment and security practices relevant to Personal Data processed by SAP Ariba in line with Section 2 only if the legal requirements set out in Section 2 applies to such other Controller and the evidence provided under Section 5.1 is insufficient for the inquiry. Such audit must be undertaken through and by Customer as set out in Section 2 unless the audit must be undertaken by the other Controller itself under Data Protection Law. If several Controllers whose Personal Data is processed by SAP Ariba on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.

5.3 Scope of Audit. Customer shall provide at least sixty days advance notice of any audit unless mandatory Data Protection Law or a competent data protection authority requires shorter notice. The frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and in good faith. Customer audits shall be limited in time to a maximum of three business days. Beyond such restrictions, the parties will use current certifications or other audit reports to avoid or minimize repetitive audits. Customer shall provide the results of any audit to SAP Ariba.

5.4 Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach by SAP Ariba of this DPA, then SAP Ariba shall bear its own expenses of an audit. If an audit determines that SAP Ariba has breached its obligations under the DPA, SAP Ariba will promptly remedy the breach at its own cost.

6. SUBPROCESSORS

6.1 Permitted Use. SAP Ariba is granted a general authorization to subcontract the processing of Personal Data to Subprocessors, provided that

(a) SAP Ariba or SAP SE on its behalf shall engage Subprocessors under a written (including in electronic form) contract consistent with the terms of this DPA in relation to the Subprocessor's processing of Personal Data. SAP Ariba shall be liable for any breaches by the Subprocessor in accordance with the terms of this Agreement;

(b) SAP Ariba will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this DPA; and

(c) SAP Ariba's list of Subprocessors that is in place on the effective date of the Agreement is published by SAP SE. It is available to Customer at https://support.sap.com/en/my-support/subprocessors.html, including the name, address and role of the Subprocessors SAP Ariba uses to provide the Online Service. In addition, the Subprocessors for the SAP Ariba Online Services includethe Third Party E-Invoice Facilitators identified on the E-Invoicing Reference page at https://service.ariba.com/Authenticator.aw/ad/termsCenter?tou=eInvoicing

6.2 New Subprocessors. SAP Ariba's use of Subprocessors is at its discretion, provided that:

(a) SAP Ariba will inform Customer in advance (by email or by posting on the support portal available through SAP Ariba Support) of any intended additions or replacements to the list of Subprocessors including name, address and role of the new Subprocessor; and

(b) Customer may object to such changes as set out in Section 6.3.

6.3 Objections to New Subprocessors.

(a) If Customer has a legitimate reason under Data Protection Law to object to the new Subprocessors' processing of Personal Data, Customer may terminate the Agreement for the Online Service for which the new Subprocessor is intended to be used, on written notice to SAP Ariba. Such termination shall take effect at the time determined by the Customer which shall be no later than thirty days from the date of SAP Ariba's notice to Customer informing Customer of the new Subprocessor. If Customer does not terminate within this thirty day period, Customer is deemed to have accepted the new Subprocessor.

(b) Within the thirty day period from the date of SAP Ariba's notice to Customer informing Customer of the new Subprocessor, Customer may request that the parties come together in good faith to discuss a resolution to the objection. Such discussions shall not extend the period for termination and do not affect SAP Ariba's right to use the new Subprocessor(s) after the thirty day period.

(c) Any termination under this Section 6.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.

6.4 Emergency Replacement. SAP Ariba may replace a Subprocessor without advance notice where the reason for the change is outside of SAP Ariba's reasonable control and prompt replacement is required for security or other urgent reasons. In this case, SAP Ariba will inform Customer of the replacement Subprocessor as soon as possible following its appointment. Section 6.3 applies accordingly.

7. INTERNATIONAL PROCESSING

7.1 Conditions for International Processing. SAP Ariba shall be entitled to process Personal Data, including by using Subprocessors, in accordance with this DPA outside the country in which the Customer is located as permitted under Data Protection Law.

7.2 Standard Contractual Clauses. Where (i) Personal Data of an EEA or Swiss based Controller ("European Controller") is processed in a country outside the EEA, Switzerland and any country, organization or territory acknowledged by the European Union as safe country with an adequate level of data protection under Art. 45 GDPR, or where (ii) Personal Data of another Controller is processed internationally and such international processing requires an adequacy means under the laws of the country of the Controller and the required adequacy means can be met by entering into Standard Contractual Clauses (the Controller then being referred to as an "Adequacy Country Controller"), then:

(a) SAP Ariba and Customer enter into the Standard Contractual Clauses;

(b) Customer enters into the Standard Contractual Clauses with each relevant Subprocessor as follows, either (i) Customer joins the Standard Contractual Clauses entered into by SAP Ariba or SAP SE and the Subprocessor as an independent owner of rights and obligations ("Accession Model") or, (ii) the Subprocessor (represented by SAP) enters into the Standard Contractual Clauses with Customer ("Power of Attorney Model"). The Power of Attorney Model shall apply if and when SAP Ariba has expressly confirmed that a Subprocessor is eligible for it through the Subprocessor list provided under Section 6.1(c), or a notice to Customer; and/or

(c) European Controllers and Adequacy Country Controllers whose use of the Online Services has been authorized by Customer under the Agreement may also enter into Standard Contractual Clauses with SAP Ariba and/or the relevant Subprocessors in the same manner as Customer in accordance with Sections 7.2 (a) and 0 above. In such case, Customer will enter into the Standard Contractual Clauses on behalf of the other Controllers.

7.3 Relation of the Standard Contractual Clauses to the Agreement. Nothing in the Agreement shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses. For the avoidance of doubt, where this DPA further specifies audit and subprocessor rules in sections 5 and 6, such specifications also apply in relation to the Standard Contractual Clauses.

7.4 Governing Law of the Standard Contractual Clauses. The Standard Contractual Clauses shall be governed by the law of the country in which the relevant Eureopean Controller is incorporated, or in the case of an Adequacy Country Controller, German law.

7.5 Country-Specific Deviations.

(a) Russian Federation. Customer, or other Controllers, remain operators of Personal Data submitted for processing to SAP Ariba and are responsible for determining

(b) United States. Unless SAP Ariba and Customer have executed a Business Associate agreement for the exchange of protected health information ("PHI") as defined in the United States Health Insurance Portability and Accountability Act of 1996, as amended, in relation to the Online Service, Customer hereby represents that Customer will not submit PHI to the Online Service nor solicit such information from partners or customers as part of use of the Online Service.

8. DOCUMENTATION; RECORDS OF PROCESSING

Each party is responsible for its compliance with its documentation requirements, in particular maintaining records of processing where required under Data Protection Law. Each party shall reasonably assist the other party in its documentation requirements, including providing the information the other party needs from it in a manner reasonably requested by the other party (such as using an electronic system), in order to enable the other party to comply with any obligations relating to maintaining records of processing.

9. DEFINITIONS

Capitalized terms not defined herein will have the meanings given to them in the Agreement.

9.1 "Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; for the purposes of this DPA, where Customer acts as processor for another controller, it shall in relation to SAP Ariba be deemed as additional and independent Controller with the respective controller rights and obligations under this DPA.

9.2 "Data Center" means the location where the production instance of the Online Service is hosted for the Customer in its region, as notified to Customer or otherwise agreed in the Agreement. The Data Center where the Ariba Network is operated is in the United States.

9.3 "Data Protection Law" means (i) the laws of the jurisdiction, where the data center(s) primarily used by SAP Ariba in operation of the Online Service is located, protecting the fundamental rights and freedoms of persons and, in particular, their right to privacy, applicable to the provision of the Online Service, and (ii) for any Personal Data regarding Data Subjects located in the EEA that is provided by Customers (or Customer's Authorized Users) for processing under the Agreement, applicable EEA law protecting the fundamental rights and freedoms of personas, including the General Data Protection Regulation. SAP Ariba may agree in terms for an Optional Service to comply with other compelling local data protection laws applicable to SAP Ariba as the Data Processor, if and to the extent agreed.

9.4 "Data Subject" means an identified or identifiable natural person as defined by Data Protection Law.

9.5 "EEA" means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein and Norway.

9.6 "European Subprocessor" means a Subprocessor that is physically processing Personal Data in the EEA or Switzerland.

9.7 "Personal Data" means any information relating to a Data Subject which is protected under Data Protection Law and which is (i) entered by Customer or its Authorized Users into the Online Service, (ii) supplied to or accessed by SAP Ariba or its Subprocessors in order to provide support under the Agreement; (iii) not anonymous and was derived from the use of Online Service by Authorized Users Personal Data is a sub-set of Customer Data (as defined under the Agreement).

9.8 "Personal Data Breach" means a confirmed (1) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to competent data protection authorities or Data Subjects.

9.9 "Processor" means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller, be it directly as processor of a controller or indirectly as subprocessor of a processor which processes personal data on behalf of the controller.

9.10 "Standard Contractual Clauses" or sometimes also referred to the "EU Model Clauses" means the (Standard Contractual Clauses (processors)) or any subsequent version thereof published by the European Commission (which will automatically apply).

9.11 "Subprocessor" means SAP Ariba Affiliates, SAP SE, SAP SE Affiliates and third parties engaged by SAP Ariba, SAP SE or SAP SE's Affiliates in connection with the Online Service and which process Personal Data in accordance with this DPA.

Appendix 1 to the DPA and, if applicable, the Standard Contractual Clauses

Data Exporter

The Data Exporter is the Customer who subscribed to the Online Service that allows Authorized Users to enter, amend, use, delete or otherwise process Personal Data. Where the Customer allows other Controllers to also use the Online Service, these other Controllers are also Data Exporters.

Data Importer

SAP Ariba and its Subprocessors provide the Online Service that includes the following support:

SAP SE Affiliates support the Online Service data centers remotely from SAP facilities in the United States, St. Leon/Rot 9Germany), India and other locations where SAP employs personnel in the Operations/Cloud Delivery function. Support includes:

SAP Ariba Affiliates provide support when a Customer submits a support ticket because the Online Service is not available or not working as expected for some or all Authorized Users. SAP Ariba answers phones and performs basic troubleshooting, and handles support tickets in a tracking system that is separate from the production instance of the Online Service.

Data Subjects

Unless provided otherwise by the Data Exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, business partners or other individuals having Personal Data stored in the Online Service.

Data Categories

The transferred Personal Data transferred concerns the following categories of data:

Customer determines the categories of data per Online Service subscribed. Customer can configure the data fields during implementation of the Online Service or as otherwise provided by the Online Service. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, e-mail address, time zone, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data that Authorized Users enter into the Online Service and may include bank account data, credit or debit card data.

Special Data Categories (if appropriate)

The transferred Personal Data concerns the following special categories of data: As set out in the Agreement if any.

Processing Operations / Purposes

The transferred Personal Data is subject to the following basic processing activities:

Appendix 2 to the DPA and, if applicable, the Standard Contractual Clauses - Technical and Organizational Measures

1. TECHNICAL AND ORGANIZATIONAL MEASURES

The following sections define SAP Ariba's current technical and organizational measures. SAP Ariba may change these at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.

1.1 Physical Access Control. Unauthorized persons are prevented from gaining physical access to premises, buildings or rooms where data processing systems that process and/or use Personal Data are located.

Measures

Additional measures for Data Centers:

1.2 System Access Control.Data processing systems used to provide the Online Service must be prevented from being used without authorization.

Measures:

1.3 Data Access Control. Persons entitled to use data processing systems gain access only to the Personal Data that they have a right to access, and Personal Data must not be read, copied, modified or removed without authorization in the course of processing, use and storage.

Measures:

1.4 Data Transmission Control. Except as necessary for the provision of the Online Services in accordance with the Agreement, Personal Data must not be read, copied, modified or removed without authorization during transfer. Where data carriers are physically transported, adequate measures are implemented at SAP Ariba to provide the agreed-upon service levels (for example, encryption and lead-lined containers).

Measures:

1.5 Data Input Control. It will be possible to retrospectively examine whether and by whom Personal Data have been entered, modified or removed from SAP Ariba data processing systems.

Measures:

1.6 Job Control. Personal Data being processed on commission (i.e., Personal Data processed on a customer's behalf) is processed solely in accordance with the Agreement and related instructions of the customer.

Measures:

1.7 Availability Control. Personal Data will be protected against accidental or unauthorized destruction or loss.

Measures:

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