Data Processing Agreement (DPA)

 
This DPA is entered into between Gatekeeper and You and is incorporated into and governed by the terms of the Agreement.

1. Definitions

Any capitalised term not defined in this DPA shall have the meaning given to it in the Agreement.

“Affiliates”

means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party;

“Agreement”

means the agreement between Gatekeeper and You for the provision of the services;

“Authorised Affiliate”

means Your Affiliate(s) which are subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom, and who are permitted to use the Services pursuant to the terms of the Agreement, but who have not signed the Agreement or an Order Form;

“Controller”

means You;

“Data Subject”

shall have the same meaning as in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (as amended from time to time, or replaced by subsequent legislation).

“DPA”

means this data processing agreement together with Exhibits A and B;

“Gatekeeper"

means Cinergy Technology Limited, trading as ‘Gatekeeper’;

“Processor”

means ‘Gatekeeper;

“Security Practices”

means security documentation listed in the ‘Gatekeeper Security Pack’.

“Standard Contractual Clauses”

means the EU model clauses for personal data transfer from controllers to processors c2010-593 - Decision 2010/87EU;

“Sub-Processor”

means any person or entity engaged by Gatekeeper or an Affiliate to process Personal Data in the provision of the Services to You.

 

2. Purpose

  1. Gatekeeper has agreed to provide the Services to You in accordance with the terms of the Agreement. In providing the Services, Gatekeeper shall process Customer Data on behalf of you. Customer Data may include Personal Data. Gatekeeper will process and protect such Personal Data in accordance with the terms of this DPA.


3. Scope

  1. In providing the Services to you pursuant to the terms of the Agreement, Gatekeeper shall process Personal Data only to the extent necessary to provide the Services in accordance with both the terms of the Agreement and your instructions documented in the Agreement and this DPA.


4. Processor (Gatekeeper) Obligations

  1. Gatekeeper may collect, process or use Personal Data only within the scope of this DPA.
  2. Gatekeeper confirms that it shall process Personal Data on behalf of you and shall take steps to ensure that any natural person acting under the authority of Gatekeeper who has access to Personal Data does not process the Personal Data except on instructions from you.
  3. Gatekeeper shall promptly inform you, if in Gatekeeper’s opinion, any of the instructions regarding the processing of Personal Data provided by you, breach any applicable data protection laws.
  4. Gatekeeper shall ensure that all employees, agents, offices and contractors involved in the handling of Personal Data: (i) are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential; (ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this DPA.
  5. Gatekeeper shall implement appropriate technical and organisational procedures to protect Personal Data, 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.
  6. Gatekeeper shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
  7. The technical and organisational measures detailed in Exhibit B shall be at all times adhered to as a minimum security standard. You accept and agree that the technical and organisational measures are subject to development and review and that Gatekeeper may use alternative suitable measures to those detailed in the attachments to this DPA.
  8. You acknowledge and agree that, in the course of providing the Services to you, it may be necessary for Gatekeeper to access Personal Data to respond to any technical problems or your queries and to ensure the proper working of the Services. All such access by Gatekeeper will be limited to those purposes.
  9. Where Personal Data relating to an EU Data Subject is transferred outside of the EEA it shall be processed: (i) subject to the provisions of the Standard Contractual Clauses or; (ii) in a country or territory recognised by the EU Commission as having an adequate level of protection; or (iii) subject to other legally recognised appropriate safeguards, such as the EU-US Privacy Shield or Binding Corporate Rules.
  10. Taking into account the nature of the processing and the information available to Gatekeeper, Gatekeeper shall assist you by having in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject's rights and your compliance with your data protection obligations in respect of the processing of Personal Data.

5. Controller
(Your) Obligations

  1. You represent and warrant that you shall comply with the terms of the Agreement, this DPA and all applicable data protection laws.
  2. You represent and warrant that you have obtained any and all necessary permissions and authorisations necessary to permit Gatekeeper, its Affiliates and Sub-Processors, to execute their rights or perform their obligations under this DPA.
  3. You is responsible for compliance with all applicable data protection legislation, including requirements with regards to the transfer of Personal Data under this DPA and the Agreement.
  4. All of your Affiliates who use the Services shall comply with your obligations set out in this DPA.
  5. You shall implement appropriate technical and organisational procedures to protect Personal Data, 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. You shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
  6. You shall take steps to ensure that any natural person acting under your authority who has access to Personal Data does not process the Personal Data except on instructions from you.
  7. You may require correction, deletion, blocking and/or making available the Personal Data during or after termination of the Agreement. Gatekeeper will process the request to the extent it is lawful, and will reasonably fulfil such request in accordance with its standard operational procedures to the extent possible.
  8. You acknowledge and agree that some instructions from you, including destruction or return of data from Gatekeeper, may result in additional fees. In such case, Gatekeeper will notify you of such fees in advance unless otherwise agreed.

6. Sub-Processors

  1. You acknowledge and agree that: (i) Affiliates of Gatekeeper may be used as Sub-processors; and (ii) Gatekeeper and its Affiliates respectively may engage Sub-processors in connection with the provision of the Services.
  2. All Sub-processors who process Personal Data in the provision of the Services to you shall comply with the obligations of Gatekeeper set out in this DPA.
  3. Where Sub-processors are located outside the EEA, Gatekeeper confirms that such Sub-processors: (i) are located in a third country or territory recognised by the EU Commission to have an adequate level of protection; or (ii) have entered into Standard Contractual Clauses with Gatekeeper; or (iii) have other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
  4. Gatekeeper provide a list of Sub-processors in Exhibit C. During the term of this DPA, Gatekeeper shall provide you with prior notification of any changes to the list of Sub-processor(s) who may process Personal Data before authorising any new or replacement Sub-processor(s) to process Personal Data in connection with the provision of the Services.
  5. You may object to the use of a new or replacement Sub-processor, by notifying Gatekeeper promptly in writing within ten (10) Business Days after receipt of Gatekeeper’s notice. If you object to a new or replacement Sub-processor, and that objection is not unreasonable, you may terminate the Agreement or applicable Order Form with respect to those Services which cannot be provided by Gatekeeper without the use of the new or replacement Sub-processor.

7. Liability

  1. The limitations on liability set out in the Agreement apply to all claims made pursuant to any breach of the terms of this DPA.
  2. The parties agree that Gatekeeper shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of Gatekeeper’s Sub-processors to the same extent Gatekeeper would be liable if performing the services of each Sub-processor directly under the terms of the DPA, subject to any limitations on liability set out in the terms of the Agreement.
  3. The parties agree that you shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Affiliates as if such acts, omissions or negligence had been committed by you itself.
  4. You shall not be entitled to recover more than once in respect of the same claim.

8. Certifications and Audits

  1. Gatekeeper is certified under ISO 27001 and agrees to maintain an information security program for the Services that complies with the ISO 27001 standards or such other alternative standards as are substantially equivalent to ISO 27001 for the establishment, implementation, control, and improvement of Gatekeeper’s security measures. 

  2. Gatekeeper uses external auditors to verify the adequacy of its security measures. This audit: (a) will be performed at least annually; (b) will be performed according to ISO 27001 standards or such other alternative standards that are substantially equivalent to ISO 27001; (c) will be performed by independent third party security professionals at Gatekeeper’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be Gatekeeper’s Confidential Information.
  3. At Customer’s written request, Gatekeeper will provide Customer with a confidential Report so that Customer can reasonably verify Gatekeeper’s compliance with its obligations under this agreement. The Report will constitute Gatekeeper’s Confidential Information under the confidentiality provisions of the Master Subscription Agreement (MSA) or an NDA, as applicable.
  4. Customer is responsible for reviewing the information made available by Gatekeeper relating to data security and making an independent determination as to whether the Services meets Customer’s requirements and legal obligations as well as Customer’s obligations under this agreement.
  5. Customer agrees to exercise any right it may have to conduct an audit or inspection by instructing Gatekeeper to carry out the audit described in Section 8ii. If the customer exercises this right, the expense of the external audit will be charged to the customer. If Customer wishes to change this instruction regarding the audit, then Customer has the right to request a change to this instruction by sending Gatekeeper written notice as provided for in the Master Subscription Agreement (MSA).

9. Notification of Data Breach

  1. Gatekeeper shall notify you without undue delay after becoming aware of (and in any event within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration or unauthorised disclosure or access to any Personal Data (“Data Breach”).
  2. Gatekeeper will take all commercially reasonable measures to secure the Personal Data, to limit the effects of any Data Breach, and to assist you in meeting your obligations under applicable law.

10. Compliance, Cooperation and Response

  1. In the event that Gatekeeper receives a request from a Data Subject in relation to Personal Data, Gatekeeper will refer the Data Subject to you unless otherwise prohibited by law. You shall reimburse Gatekeeper for all costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request. In the event that Gatekeeper is legally required to respond to the Data Subject, you will fully cooperate with Gatekeeper as applicable.
  2. Gatekeeper will notify you promptly of any request or complaint regarding the processing of Personal Data, which adversely impacts you, unless such notification is not permitted under applicable law or a relevant court order.
  3. Gatekeeper may make copies of and/or retain Personal Data in compliance with any legal or regulatory requirement including, but not limited to, retention requirements.
  4. The parties acknowledge that it is your duty to notify Gatekeeper within a reasonable time, of any changes to applicable data protection laws, codes or regulations which may affect the contractual duties of Gatekeeper. Gatekeeper shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this DPA or to the technical and organisational measures to maintain compliance. If the parties agree that amendments are required, but Gatekeeper is unable to accommodate the necessary changes, Gatekeeper may terminate the part or parts of the Services which give rise to the non-compliance. To the extent that other parts of the Services provided are not affected by such changes, the provision of those Services shall remain unaffected.
  5. You and Gatekeeper and, where applicable, their representatives, shall cooperate, on request, with a supervisory data protection authority in the performance of their respective obligations under this DPA.

11. Term and Termination

  1. The term of this DPA shall coincide with the commencement of the Agreement and this DPA shall terminate automatically together with termination or expiry of the Agreement.
  2. Gatekeeper shall at your choice, delete or return Personal Data to you after the end of the provision of the Services relating to processing, and delete existing copies unless applicable law or regulations require storage of the Personal Data. 


12. General

  1. This DPA sets out the entire understanding of the parties with regards to the subject matter herein.
  2. Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
  3. This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.

 

Exhibit A
Overview of data processing activities to be performed by the Processor (Gatekeeper)


1. Controller (You)

You transfer Personal Data identified in sections 3 and 4 below, as it relates to the processing operations identified in section 5 below.


2. 
Processor (Gatekeeper)

Gatekeeper received data identified in sections 3 and 4 below, as it relates to the processing operations identified in section 5 below.

Gatekeeper is:
Cinergy Technology Limited (t/a Gatekeeper), of Cinergy House, 1 Boyne Terrace, St Helier, Jersey, JE2 3WA.


3. Data Subjects

The Personal Data transferred concern the following categories of Data Subjects: 

  • Employees, freelancers and contractors of the Controller (You).
  • Users, Affiliates and other participants from time to time to whom the Controller (You) has granted the right to access the Services in accordance with the terms of the Agreement.
  • Clients, Supplier, Counterparties and Affiliates of the Controller (You) and individuals with whom those end users communicate with by email and/or instant messaging.
  • Service providers of the Controller (You).
  • Other individuals to the extent identifiable in the content of emails or their attachments or in archiving content.


4. 
Categories of Data

The Personal Data transferred concern the following categories of data:

  • Personal details, names, user names, passwords, email addresses of Users.
  • Personal Data derived from the Users use of the Services such as records and business intelligence information.
  • Personal Data within email and messaging content which identifies or may reasonably be used to identify, data subjects.
  • Meta data including IP, sent, to, from, date, time, subject, which may include Personal Data.
  • Financial information.


5. Processing operations

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

  • Personal Data will be processed to the extent necessary to provide the Services in accordance with both the Agreement and Your instructions. Gatekeeper processes Personal Data only on behalf of you. Processing operations include, but are not limited to: Provision of online procurement, collaboration, business process and operations, analysis, sourcing, supplier management, contract management and legal management approval services – this operation relates to all aspects of Personal Data processed.
  • Technical support, issue diagnosis and error correction to ensure the efficient and proper running of the systems and to identify, analyse and resolve technical issues both generally in the provision of the Services and specifically in answer to a Controller query. This operation may relate to all aspects of Personal Data processed but will be limited to metadata where possible.
  • Virus, anti-spam and Malware checking in accordance with the Services provided. This operation relates to all aspects of Personal Data processed.
  • URL scanning for the purposes of the provision of targeted threat protection and similar service which may be provided under the Agreement. This operation relates to attachments and links in emails and will relates to any Personal Data within those attachments or links which could include all categories of Personal Data. 



Exhibit B
Technical and Organisational Security Measures

Gatekeeper is currently ISO 27001 and ISO 9001 certified and will continue to maintain these certifications and/or other substantially similar or equivalent certifications for the term of this Agreement. The technical and organisational measures defined herein are implemented on the basis of the international standard ISO 27001 and ISO 9001. Gatekeeper shall maintain controls materially as protective as those provided in the ISO 27001 and ISO 9001 or other substantially similar or equivalent certification requirements.

Processor utilises third party data centres that maintain current ISO 27001 certifications and/or SSAE 16 SOC 1 Type II or SOC 2 Attestation Reports. Gatekeeper will not utilise third party data centres that do not maintain the aforementioned certifications and/or attestations, or other substantially similar or equivalent certifications and/or attestations.

Upon your written request (no more than once in any 6 month period), Gatekeeper shall provide within a reasonable time, a copy of the most recently completed certification and/or attestation reports (to the extent that to do so does not prejudice the overall security of the Services). Any audit report submitted to the Customer shall be treated as Confidential Information and subject to the confidentiality provisions of the Agreement between the parties.

The following descriptions provide an overview of the technical and organisational security measures implemented. It should be noted however that, in some circumstances, in order to protect the integrity of the security measures and in the context of data security, detailed descriptions may not be available, however additional information regarding technical and organisational measures may be found in the Security Practices. It’s acknowledged and agreed that the Security Practices and the technical and organisational measures described therein will be updated and amended from time to time, at the sole discretion of Gatekeeper. Notwithstanding the foregoing, the technical and organisational measures will not fall short of those measures described in the Security Practices in any material, detrimental way.


1. 
Entrance Control

Technical or organisational measures regarding access control, especially regarding legitimation of authorised persons:

The aim of the entrance control is to prevent unauthorised people from physically accessing such data processing equipment which processes or uses Personal Data.

Due to their respective security requirements, business premises and facilities are subdivided into different security zones with different access authorisations. They are monitored by security personnel. Access for employees is only possible with an encoded ID with a photo on it. All other persons have access only after having registered before (e.g. at the main entrance).

Access to special security areas for remote maintenance is additionally protected by a separate access area. The constructional and substantive security standards comply with the security requirements for data centres.

 
2. System Access Control

Technical and organisational measures regarding the user ID and authentication:

The aim of the system access control is to prevent unauthorised use of data processing systems, are used for the processing of Customer Data.

Remote access to the data processing systems is only possible through a secure protocol. All access attempts, successful and unsuccessful are logged and monitored.

Additional technical protections are in place using firewalls and proxy servers and state of the art encryption technology that is applied where appropriate to meet the protective purpose based on risk.


3. Data Access Control

Technical and organisational measures regarding the on-demand structure of the authorisation concept, data access rights and monitoring and recording of the same:

Measures regarding data access control are targeted on the basis that only such data can be accessed for which an access authorisation exists and that data cannot be read, copied, changed or deleted in an unauthorised manner during the processing and after the saving of such data.

Access to data necessary for the performance of the particular task is ensured within the systems and applications by a corresponding role and authorisation concept. In accordance to the “least privilege” and "need-to-know" principles, each role has only those rights which are necessary for the fulfilment of the task to be performed by the individual person.

To maintain data access control, state of the art encryption technology is applied to the Personal Data itself where deemed appropriate to protect sensitive data based on risk.


4. Transmission Control

Technical and organisational measures regarding the transport, transfer, transmission, storage and subsequent review of Personal Data on data media (manually or electronically).

Transmission control is implemented so that Personal Data cannot be read, copied, changed or deleted without authorisation, during transfer or while stored on data media, and so that it can be monitored and determined as to which recipients a transfer of Personal Data is intended.

The measures necessary to ensure data security during transport, transfer and transmission of Personal Data as well as any other company or Customer Data are detailed in the Security Practices. This standard includes a description of the protection required during the processing of data, from the creation of such data to deletion, including the protection of such data in accordance with the data classification level.

For the purpose of transfer control, an encryption technology is used (e.g. remote access to the company network via two factor VPN tunnel and full disk encryption). The suitability of an encryption technology is measured against the protective purpose.

The transfer of Personal Data to a third party (e.g. customers, sub-contractors, service providers) is only made if a corresponding contract exists, and only for the specific purposes. If Personal Data is transferred to companies located outside the EEA, Gatekeeper provides that an adequate level of data protection exists at the target location or organisation in accordance with the European Union's data protection requirements, e.g. by employing contracts based on the Standard Contractual Clauses.


5. Data Entry Control

Technical and organisational measures regarding recording and monitoring of the circumstances of data entry to enable retroactive review.

System inputs are recorded in the form of log files therefore it is possible to review retroactively whether and by whom Personal Data was entered, altered or deleted.


6. Data Processing Control

Technical and organisational measures to differentiate between the competences of principal and contractor:

The aim of the data processing control is to provide that Personal Data is processed by a commissioned data processor in accordance with the Instructions of the principal.

Details regarding data processing control are set forth in the Agreement and DPA.


7. Availability Control 

Technical and organisational measures regarding data backup (physical/logical):

Data is stored in a fault-tolerant, Amazon (AWS) data centre, with no single point of failure.


8. Separation Control

Technical and organisational measures regarding purposes of collection and separated processing:

Personal Data used for internal purposes only e.g. as part of the respective customer relationship, may be transferred to a third party such as a subcontractor, solely under consideration of contractual arrangements and appropriate data protection regulatory requirements.

Employees are instructed to collect, process and use Personal Data only within the framework and for the purposes of their duties (e.g. service provision). At a technical level, multi-client capability includes separation of functions as well as appropriate separation of testing and production systems.

Customer Data is stored in a way that logically separates it from other customer data.

Each Customer is assigned a unique encryption key, which is used to encrypt and decrypt all of the customer’s archived data. In addition to the unique encryption keys, all data being written to the storage grid includes the customer’s unique account code. The Processor’s systems that write data to the storage grid retrieve he encryption key from one system and the customer code from another, which serves as a cross check against two independent systems. The customer’s encryption key is further encrypted with a Processor key stored within a centralised and restricted key management system. In order for the Processor to access Customer Data via the master key, the key management system provisions individual keys following a strict process of approval that includes multiple levels of executive authorisation. Use of these master encryption keys is limited to senior production engineers and all access is logged, monitored, and configured for alerting by security via a centralised system. Customer data is encrypted in transit and at rest using state of the art encryption technology.

 

Exhibit C

Infrastructure Sub-processors

Gatekeeper may use the following Sub-processors to host Customer Data or provide other infrastructure that helps with the delivery of our Services:

Sub-processor Purpose Country Website
AWS Amazon Data Hosting USA, Ireland, Australia https://aws.amazon.com

 

Other Sub-processors

Gatekeeper may use the following Sub-processors to perform other Service functions:

Sub-processor Purpose Country Website
Hubspot Inc Internal Marketing and CRM USA https://www.hubspot.com/
Google Inc Internal Email and File Storage EU https://gsuite.google.com
Slack Technologies Inc Internal Instant Messaging USA https://slack.com/