DATA PROCESSING AGREEMENT FOR SAP ARIBA NETWORK SERVICES
(DATA PROCESSING EXHIBIT)
1.1. "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 be deemed as additional and independent Controller with the respective controller rights and obligations under this DPA.
1.2. "Data Protection Law" means the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Personal Data under the Agreement.
1.3. "Data Subject" means an identified or identifiable natural person as defined by Data Protection Law.
1.4. "EEA" means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein and Norway.
1.5. "GDPR" means the General Data Protection Regulation 2016/679.
1.7. "New SCC Relevant Transfer" means a transfer (or an onward transfer) to a Third Country of Personal Data that is either subject to GDPR or to applicable Data Protection Law and where any required adequacy means under GDPR or applicable Data Protection Law can be met by entering into the New Standard Contractual Clauses.
1.8. "New Standard Contractual Clauses" means the unchanged standard contractual clauses, published by the European Commission, reference 2021/914 or any subsequent final version thereof which shall automatically apply. To avoid doubt Modules 2 and 3 shall apply as set out in Section 8.
1.9. "Personal Data" means any information relating to a Data Subject which is protected under Data Protection Law. For the purposes of the DPA, it includes only personal data which is:
a) entered by Customer or its Authorized Users into or derived from their use of the Cloud Service; or
b) supplied to or accessed by SAP or its Subprocessors in order to provide support under the Agreement. Personal Data is a sub-set of Customer Data (as defined under the Agreement).
1.10. "Personal Data Breach" means a confirmed:
a) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data; or
b) 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.
1.11. "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.
1.12. "Schedule" means the numbered Appendix with respect to the Standard Contractual Clauses (2010) and the numbered Annex with respect to the New Standard Contractual Clauses.
1.13. "Standard Contractual Clauses (2010)" means the Standard Contractual Clauses (processors) published by the European Commission, reference 2010/87/EU.
1.14. "Subprocessor" or "sub-processor" means SAP Affiliates, SAP SE, SAP SE Affiliates and third parties engaged by SAP, SAP SE or SAP SE's Affiliates in connection with the Cloud Service and which process Personal Data in accordance with this DPA.
1.16. "Third Country" means any country, organization or territory not acknowledged by the European Union under Article 45 of GDPR as a safe country with an adequate level of data protection.
2.1. Purpose and Application
2.2.1. This DPA applies to Personal Data processed by SAP and its Subprocessors in connection with its provision of the Online Service, referred to herein as the "Cloud Service".
2.2.2. This DPA does not apply to non-production environments of the Cloud Service if such environments are made available by SAP. Customer shall not store Personal Data in such environments.
2.2.3. 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 when a company registers on the Ariba Network or Ariba Discovery services. SAP'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 Business Network found at .
Schedules 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.
2.4.1. SAP acts as a Processor and Customer and those entities that it permits to use the Cloud Service act as Controllers under the DPA.
2.4.2. Customer acts as a single point of contact and shall obtain 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 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 Cloud Service. Where SAP informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Cloud Service. Customer shall forward such information and notices to the relevant Controllers.
3. Security of Processing
3.1. Applicability of the Technical and Organizational Measures
SAP has implemented and will apply the Technical and Organizational Measures. Customer has reviewed such measures and agrees that as to the Cloud 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.
3.2.1. SAP applies the Technical and Organizational Measures to SAP's entire customer base hosted out of the same data center or receiving the same Cloud Service. SAP may change the Technical and Organizational Measures 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.
3.2.2. SAP will publish updated versions of the Technical and Organizational Measures on My Trust Center and where available Customer may subscribe to receive e-mail notification of such updated versions.
4. SAP OBLIGATIONS
4.1. Instructions from Customer
a) SAP will process Personal Data only in accordance with documented instructions from Customer. The Agreement (including this DPA) constitutes such documented initial instructions and each use of the Cloud Service then constitutes further instructions. SAP 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 Cloud Service. If any of the before-mentioned exceptions apply, or SAP otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, SAP will immediately notify Customer (email permitted).
b) When SAP acts on Customer's instruction to send documents to a trading partner selected by Customer who is using the Cloud 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 nor shall it be considered as a "transfer" to the trading partner's country for the purposes of this DPA, specifically Section 8.2
4.2. Processing on Legal Requirement
SAP may also process Personal Data where required to do so by applicable law. In such a case, SAP shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.
To process Personal Data, SAP and its Subprocessors shall only grant access to authorized personnel who have committed themselves to confidentiality. SAP and its Subprocessors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures.
4.4.1. At Customer's request, SAP will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding SAP's processing of Personal Data or any Personal Data Breach.
4.4.2. If SAP receives a request from a Data Subject in relation to the Personal Data processing hereunder, SAP will promptly notify Customer (where the Data Subject has provided information to identify the Customer) via e-mail and shall not respond to such request itself but instead ask the Data Subject to redirect its request to Customer.
4.4.3. In the event of a dispute with a Data Subject as it relates to SAP's processing of Personal Data under this DPA, the Parties shall keep each other informed and, where appropriate, reasonably co-operate with the aim of resolving the dispute amicably with the Data Subject.
4.4.4. SAP shall provide functionality for production systems that supports Customer's ability to correct, delete or anonymize Personal Data from a Cloud Service, or restrict its processing in line with Data Protection Law. Where such functionality is not provided, SAP will correct, delete or anonymize any Personal Data, or restrict its processing, in accordance with the Customer's instruction and Data Protection Law.
4.5. Personal Data Breach Notification
SAP 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 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.
4.6. 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 will provide such documents as are generally available for the Cloud Service (for example, this DPA, the Agreement, Audit Reports and Certifications). Any additional assistance shall be mutually agreed between the Parties.
5. Data export and Deletion
5.1. 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 and Customer will find a reasonable method to allow Customer access to Personal Data.
Before the Subscription Term expires, Customer may use SAP's self-service export tools (as available) to perform a final export of Personal Data from the Cloud 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 hereby instructs SAP to delete the Personal Data remaining on servers hosting the Cloud Service within a reasonable time period in line with Data Protection Law (not to exceed 6 months) unless applicable law requires retention.
6. CERTIFICATIONS AND AUDITS
6.1. Customer Audit
a) Certifications and Audit Reports. For the production systems which run the Cloud Service itself and during the term of the Agreement, as evidence of its compliance with the technical and organizational measures, SAP shall maintain, at its own expense, applicable certifications or audit reports. Unless provided otherwise in the Agreement or terms for an Optional Service, SAP engages an internationally recognized independent third party auditor to review the measures in place in protection of the Cloud Service(s). Certifications may be based on ISO 27001 or other standards (scope as defined in certificate). For certain SAP Cloud Services, SAP 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 shall inform the Customer about the applicable certifications and audit standards available for the Cloud 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 (which shall not include any third party auditors who are either a competitor of SAP or not suitably qualified or independent) may audit SAP's control environment for the Cloud Services and security practices relevant to Personal Data processed by SAP only if such direct audit right is required by the Data Protection Law and the materials provided by SAP in 6.1(a) are insufficient for the inquiry, and then not more than once in any 12 month period unless mandatory Data Protection Law requires more frequent audits.
6.2. Other Controller Audit
Any other Controller may assume Customer's rights under Section 6.1 only if it applies directly to the Controller and such audit is permitted and coordinated by Customer. Customer shall use all reasonable means to combine audits of multiple other Controllers to avoid multiple audits.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 on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.
6.3. Scope of Audit
Customer shall provide at least 60 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 3 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.
6.4. Cost of Audits
Customer shall bear the costs of any audit unless such audit reveals a material breach by SAP of this DPA, then SAP shall bear its own expenses of an audit. If an audit determines that SAP has breached its obligations under the DPA, SAP will promptly remedy the breach at its own cost.
7.1. Permitted Use
SAP is granted a general authorization to subcontract the processing of Personal Data to Subprocessors, provided that:
a) SAP 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 shall be liable for any breaches by the Subprocessor in accordance with the terms of this Agreement;
b) SAP 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's list of Subprocessors in place on the effective date of the Agreement is published by SAP on My Trust Center or SAP will make it available to Customer upon request, including the name, address and role of each Subprocessor SAP uses to provide the Cloud Service. In addition, the Subprocessors for the Ariba Network Online Services include the Third Party E-Invoice Facilitators identified on the E-Invoicing Reference page at
7.2. New Subprocessors
SAP's use of Subprocessors is at its discretion, provided that:
a) SAP will inform Customer in advance (by email or by posting on the My Trust Center) 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 7.3.
7.3. Objections to New Subprocessors
7.3.1. If Customer has a legitimate reason under Data Protection Law to object to the new Subprocessorsâ processing of Personal Data, Customer may terminate the Agreement (limited to the Cloud Service for which the new Subprocessor is intended to be used) on written notice to SAP. Such termination shall take effect at the time determined by the Customer which shall be no later than 30 days from the date of SAP's notice to Customer informing Customer of the new Subprocessor. If Customer does not terminate within this 30 day period, Customer is deemed to have accepted the new Subprocessor.
7.3.2. Within the 30 day period from the date of SAP's notice to Customer informing Customer of the new Subprocessor, Customer may request that the parties discuss in good faith a resolution to the objection. Such discussions shall not extend the period for termination and do not affect SAP's right to use the new Subprocessor(s) after the 30 day period.
7.3.3. Any termination under this Section 7.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.
7.4. Emergency Replacement
SAP may replace a Subprocessor without advance notice where the reason for the change is outside of SAP's reasonable control and prompt replacement is required for security or other urgent reasons. In this case, SAP will inform Customer of the replacement Subprocessor as soon as possible following its appointment. Section 7.2 applies accordingly.
8.1. Conditions for International Processing
SAP 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.
8.2. Applicability of the Standard Contractual Clauses (2010)
8.2.1. Where, for the period up to and including 26 September 2021, Personal Data of a Controller that is subject to GDPR is processed in a Third Country, or where Personal Data of a Swiss or United Kingdom based Controller or another Controller is processed in a Third Country 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 (2010), then:
a) SAP and Customer enter into the Standard Contractual Clauses (2010);
b) Customer joins the Standard Contractual Clauses (2010) entered into by SAP or SAP SE and the Subprocessor as an independent owner of rights and obligations; or
c) other Controllers whose use of the Cloud Services has been authorized by Customer under the Agreement may also enter into Standard Contractual Clauses (2010) with SAP or the relevant Subprocessors in the same manner as Customer in accordance with Section 8.2.1 a) and b) above. In such case, Customer will enter into the Standard Contractual Clauses (2010) on behalf of the other Controllers.
8.2.2. The Standard Contractual Clauses (2010) shall be governed by the law of the country in which the relevant Controller is established.
8.2.3. Where applicable Data Protection Law adopts the New Standard Contractual Clauses as meeting any required adequacy means as an alternative or update to the Standard Contractual Clauses (2010) then the New Standard Contractual Clauses shall apply in accordance with Section 8.3.
8.3. Applicability of New Standard Contractual Clauses
8.3.1. The following shall apply with effect from 27 September 2021 and shall solely apply in respect of New SCC Relevant Transfers:
220.127.116.11. Where SAP is not located in a Third Country and acts as a data exporter, SAP (or SAP SE on its behalf) has entered in to the New Standard Contractual Clauses with each Subprocessor as the data importer. Module 3 (Processor to Processor) of the New Standard Contractual Clauses shall apply to such New SCC Relevant Transfers.
18.104.22.168. Where SAP is located in a Third Country:
SAP and Customer hereby enter into the New Standard Contractual Clauses with Customer as the data exporter and SAP as the data importer which shall apply as follows:
a) Module 2 (Controller to Processor) shall apply where Customer is a Controller; and
b) Module 3 (Processor to Processor) shall apply where Customer is a Processor. Where Customer acts as Processor under Module 3 (Processor to Processor) of the New Standard Contractual Clauses, SAP acknowledges that Customer acts as Processor under the instructions of its Controller(s).
8.3.2. Other Controllers or Processors whose use of the Cloud Services has been authorized by Customer under the Agreement may also enter into the New Standard Contractual Clauses with SAP in the same manner as Customer in accordance with Section 22.214.171.124 above. In such case, Customer enters into the New Standard Contractual Clauses on behalf of the other Controllers or Processors.
8.3.3. With respect to a New SCC Relevant Transfer, on request from a Data Subject to the Customer, Customer may make a copy of Module 2 or 3 of the New Standard Contractual Clauses entered into between Customer and SAP (including the relevant Schedules), available to Data Subjects.
8.3.4. The governing law of the New Standard Contractual Clauses shall be the law of Germany.
8.4. 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 (2010) or the New Standard Contractual Clauses. For the avoidance of doubt, where this DPA further specifies audit and Subprocessor rules, such specifications also apply in relation to the Standard Contractual Clauses (2010) and the New Standard Contractual Clauses.
8.5. Third Party Beneficiary Right under the New Standard Contractual Clauses
8.5.1. Where Customer is located in a Third Country and acting as a data importer under Module 2 or Module 3 of the New Standard Contractual Clauses and SAP is acting as Customer's sub-processor under the applicable Module, the respective data exporter shall have the following third party beneficiary right:
8.5.2. In the event that Customer has factually disappeared, ceased to exist in law or has become insolvent (in all cases without a successor entity that has assumed the legal obligations of the Customer by contract or by operation of law), the respective data exporter shall have the right to terminate the affected Cloud Service solely to the extent that the data exporter's Personal Data is processed. In such event, the respective data exporter also instructs SAP to erase or return the Personal Data.
9. Documentation; Records of processing
9.1. 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.
Schedule 1 Description of the Processing
This Schedule 1 applies to describe the Processing of Personal Data for the purposes of the Standard Contractual Clauses (2010), New Standard Contractual Clauses and applicable Data Protection Law.
1. A. LIST OF PARTIES
1.1. Under the Standard Contractual Clauses (2010)
1.1.1. Data Exporter
The data exporter under the Standard Contractual Clauses (2010) is the Customer who subscribed to a Cloud 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 Cloud Service, these other Controllers are also data exporters.
1.1.2. Data Importer
SAP and its Subprocessors that provide and support the Cloud Service are data importers under the Standard Contractual Clauses (2010).
1.2. Under the New Standard Contractual Clauses
1.2.1. Module 2: Transfer Controller to Processor
Where SAP is located in a Third Country, Customer is the Controller and SAP is the Processor, then Customer is the data exporter and SAP is the data importer.
1.2.2. Module 3: Transfer Processor to Processor
Where SAP is located in a Third Country, Customer is a Processor and SAP is a Processor, then Customer is the data exporter and SAP is the data importer.
2. B. DESCRIPTION OF TRANSFER
2.1. 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 Cloud Service, transmitted to, made available to, accessed or otherwise processed by the data importer.
2.2. Data Categories
The transferred Personal Data concerns the following categories of data:
Customer determines the categories of data per Cloud Service subscribed. Customer can configure the data fields during implementation of the Cloud Service or as otherwise provided by the Cloud Service. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, e-mail address, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data that Authorized Users enter into the Cloud Service and may include bank account data, credit or debit card data.
2.3. Special Data Categories (if agreed)
2.3.1. The transferred Personal Data may comprise special categories of personal data set out in the Agreement ("Sensitive Data"). SAP has taken Technical and Organizational Measures as set out in Schedule 2 to ensure a level of security appropriate to protect also Sensitive Data.
2.3.2. The transfer of Sensitive Data may trigger the application of the following additional restrictions or safeguards if necessary to take into consideration the nature of the data and the risk of varying likelihood and severity for the rights and freedoms of natural persons (if applicable):
a) training of personnel;
b) encryption of data in transit and at rest;
c) system access logging and general data access logging.
2.3.3. In addition, the Cloud Services provide measures for handling of Sensitive Data as described in the Documentation.
2.4. Purposes of the data transfer and further processing; Nature of the processing
2.4.1. The transferred Personal Data is subject to the following basic processing activities:
a) use of Personal Data to set up, operate, monitor and provide the Cloud Service (including operational and technical support);
b) continuous improvement of service features and functionalities provided as part of the Cloud Service including automation, transaction processing and machine learning;
c) provision of embedded Professional Services;
d) communication to Authorized Users;
e) storage of Personal Data in dedicated data centers (multi-tenant architecture);
f) release, development and upload of any fixes or upgrades to the Cloud Service;
g) back up and restoration of Personal Data stored in the Cloud Service;
h) computer processing of Personal Data, including data transmission, data retrieval, data access;
i) network access to allow Personal Data transfer;
j) monitoring, troubleshooting and administering the underlying Cloud Service infrastructure and database;
k) security monitoring, network-based intrusion detection support, penetration testing; and
l) execution of instructions of Customer in accordance with the Agreement.
2.4.2. The purpose of the transfer is to provide and support the Cloud Service. SAP and its Subprocessors may support the Cloud Service data centers remotely. SAP and its Subprocessors provide support when a Customer submits a support ticket as further set out in the Agreement.
2.5.1. Applicable Modules of the New Standard Contractual Clauses
a) Module 2: Transfer Controller to Processor
b) Module 3: Transfer Processor to Processor
2.5.2. For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
In respect of the New Standard Contractual Clauses, transfers to Subprocessors shall be on the same basis as set out in the DPA.
2.5.3. The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Transfers shall be made on a continuous basis.
2.5.4. The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period.
Personal Data shall be retained for the duration of the Agreement and subject to Section 5.2 of the DPA.
3. C. COMPETENT SUPERVISORY AUTHORITY
3.1. In respect of the New Standard Contractual Clauses:
3.1.1. Module 2: Transfer Controller to Processor
3.1.2. Module 3: Transfer Processor to Processor
3.2. Where Customer is the data exporter, the supervisory authority shall be the competent supervisory authority that has supervision over the Customer in accordance with Clause 13 of the New Standard Contractual Clauses.
Schedule 2 Technical and Organizational Measures
This Schedule 2 applies to describe the applicable technical and organizational measures for the purposes of the Standard Contractual Clauses (2010), New Standard Contractual Clauses and applicable Data Protection Law.
SAP will apply and maintain the Technical and Organizational Measures.
To the extent that the provisioning of the Cloud Service comprises New SCC Relevant Transfers, the Technical and Organizational Measures set out in Schedule 2 describe the measures and safeguards which have been taken to fully take into consideration the nature of the personal data and the risks involved. If local laws may affect the compliance with the clauses, this may trigger the application of additional safeguards applied during transmission and to the processing of the personal data in the country of destination (if applicable: encryption of data in transit, encryption of data at rest, anonymization, pseudonymization).
Ariba Network Data Processing Exhibit enGLOBAL.v.11-2021 based on SAP Data Processing Agreement for Cloud Services enGLOBAL.v.8-2021