The best place to stop a snowball from rolling the wrong way is the top of the hill.
When it comes to managing risk in business, there are two fundamental principles:
- You can’t disarm all of the land mines. A risk is like a land mine – it will detonate sooner or later once the right factors occur. Part of risk management is having enough information to know (or make an educated guess) at which risk “land mines” are more likely to go off than others, so you can stack rank and disarm the land mines in the right order. That way, hopefully you’ll disarm each one in time, and if one does goes off before you can disarm it it will cause minimal damage.
- You don’t have to stop every factor from occurring; you have to stop at least one factor from occurring. If a risk “land mine” detonates, a number of things all went wrong at the same time. Think of it as the lock on Pandora’s Box – for the lock to open (the land mine going off), the pins in the cylinder (the environmental factors) must align perfectly with the key (the catalyst). As long as one of the pins are misaligned, the lock won’t open. If you don’t have the resources or ability to ensure all pins are misaligned, try to ensure at least one pin is misaligned so the land mine can’t go off. (If more than one is misaligned, that’s even better.)
To manage a risk, a business must first mitigate and shift the risk to reduce the chance of the land mine detonating to the greatest extent possible, and then accept or rejectthe residual risk to the business. (For more on this, please see my earlier LinkedIn article on Revisiting Risk Management).
When it comes to your relationships with your key vendors, suppliers and other partners/providers, risk management principles should be applied to both existing partners/providers, prospective partners/providers, and “inherited” partners/providers (e.g., through acquisition). There are a number of ways to mitigate and shift risk in these relationships:
Mitigating the Risks
- Don’t automatically disqualify companies that have had past problems. If an RFP reveals that a partner/provider has had a past issue, focus on what steps they have taken to remediate the issue and protect against a recurrence. The result may be that they have a more robust security and risk management program than their peers.
- Set online alerts, such as Google Alerts, to stay up-to-date on the news relating to your prospective or current partner/provider during the course of your negotiations and relationship, and escalate any alerts appropriately. If the partner/provider is public, set an alert for any spikes (up or down) in stock price.
- Plan for the inevitable. Inevitably, your business relationship will end at some point. It could end when you’re ready for and expecting it, but you can’t count on that. If your partner/provider is mission-critical, develop an “expected” and “unexpected” transition plan and confirm that the partner/provider can locate and provide you the data you need to execute on that plan. For example, ensure you have all information and data you may need if the partner/provider ceases operations (for example, routinely download reports and data sets from their portal, or set up an automated feed). Alternatively, consider ways to ensure that if a partner/provider creates and stores mission-critical information (e.g., order or personal information, critical reports or data, etc.), it’s mirrored securely to a location in your control on a regular basis so that if there’s a problem, you have a secure and current data set to work from. This may be required or important under your company’s business continuity plan, and your contractual commitments to your clients.
- Know your alternatives. Keep abreast of alternative partners/providers, do initial vetting from a security perspective, and maintain relationships with them. If a problem occurs, the company may have to switch partners/providers quickly. If you have taken the time to cultivate a “rainy day” relationship, that partner/provider may be happy to go out of their way to help you onboard quickly should a problem with your existing partner/provider occur (in the hopes that your company may reward their help with a long-term relationship).
- Put contractual provisions in place. Sales and Procurement should partner with IT and Legal to ensure that the right risk mitigation provisions are included in partner/provider agreements on an as-needed basis. Consider adding a standard privacy and security addendum to your agreements, whether on their paper or yours. Common provisions to consider include a security safeguards requirement; obligation to protect your network credentials in their possession; obligation to provide security awareness training (including anti-phishing) to their employees (consider asking for the right to test their employees with manufactured phishing emails, or getting an obligation that they will do so); requiring partners/providers to maintain industry standard certifications such as ISO 27001 certification, PCI certification, SOC 2 Type 2 obligations, etc.; obligation to encrypt sensitive personal information in their possession; obligations to carry insurance covering certain types of risks (ensure your company is named as an additional insured, and try to obtain a waiver of the right of subrogation); rights to perform penetration testing (or an obligation for them to do so); a obligation to comply with all applicable laws, rules and regulations); an obligation to complete an information security questionnaire and participate in an audit; language addressing what happens in the event of a security breach; and termination rights in the event the partner is not living up to their obligations. Not all of these provisions make sense for every partner/provider. Another approach to consider is to add appropriate provisions to a supplier/vendor code of conduct incorporated by reference into your partner/provider agreements (ensure conflicts are resolved in favor of the code of conduct).
Shifting the Risks
- Use contractual indemnities. An indemnity is a contractual risk-shifting term through which one party agrees to bear the costs and expenses arising from, resulting from or related to certain claims or losses suffered by another party. Consider whether to include in your partner/provider agreement an indemnity obligation for breaches of representations/warranties/covenants, breach of material obligations, breach of confidentiality/security, etc. Consider whether to ask for a first party indemnity (essentially insurance, much harder to get) vs. a third party indemnity (insulation from third party lawsuits). Remember that an indemnity is only as good as the company standing behind it. Also, pay close attention to the limitation of liability and disclaimer of warranties/damages clauses in the agreement to ensure they are broad enough for your company.
- Request a Parental Guaranty. If the contracting party isn’t fully capitalized, or is the subsidiary of a larger “deep pocketed” organization, consider requesting a performance and payment/indemnification guaranty to ensure you can pursue the parent if the subsidiary you are contracting with fails to comply with its contractual obligations.
- Acquire insurance. Finally, consider whether your existing or other available insurance coverage would protect you against certain risks arising from your partner/provider relationships. Review the biggest risks faced by your company (including risks impacting your partner/provider agreements) on a regular basis to determine if changes to your insurance coverage profile are warranted; your coverage should evolve as your business evolves. Understand what exclusions apply to your insurance, and consider asking your broker walk you through your coverage on an annual basis.
One of the most important lessons from the 2013 Target breach was that hackers will look for the weakest link in a company’s security chain when seeking a point of entry. Often, that weakest link is the vendors and partners which integrate with your IT infrastructure or have login credentials to your systems. Target’s HVAC vendor suffered a phishing attack that resulted in hackers obtaining access credentials to Target’s network which they used as their point of entry. Companies are increasingly doing security diligence on their vendors and partners to ensure that if they have access to the company’s network or systems, they will meet minimum security requirements. It’s critical that your vendors and partners agree to minimum contractual security commitments as well. I often use a “security addendum” with controlling language to ensure that my standard provisions control over any conflicting provisions in the vendor/partner agreement, but will sometimes embed them directly into the contract.
Here are some of the provisions I like to include in vendor and partner agreements:
- Definitions of Personal Information and Financial Account Information. It’s important to define what “personal information” and “financial account information” mean. In many cases, your vendor/partner’s definition of these terms may differ from yours. Ensuring you’re on the same page (e.g., you may consider IP addresses to be personal information, they do not) can be critical in the event there is an unauthorized release of information. Be careful using a list of information types as the list may change over time; instead, consider a broad definition with examples.
- Credentials. If you are providing credentials to your vendor/partner to access your network or systems, or that of a third party (e.g., a marketing service, a cloud hosting environment, etc.), ensure they will only use them as required by the contract. Ensure they fall under the contractual definition of Confidential Information and will be treated as such. Access to credentials should be limited to those with a “need to know.”
- Safeguards. I like to include a requirement to implement and follow administrative, physical and technical safeguards (no less rigorous than industry standard) designed to protect information and credentials. This can be a good catch-all that can be leveraged if the vendor/partner has a problem later on and did not use industry standard security safeguards. I also like to call out the importance of installing security software patches immediately to reduce the risk of an exploitable security hole. If the vendor/partner has obtained security certifications (e.g., SSAE16, ISO 27001, etc.) that you are relying on, ensure they provide evidence of current certification upon request and do not let certifications lapse during the term of the Agreement.
- Anti-Phishing Training. Over 90% of hacking attacks start with a “phishing” attack. Consider specifically requiring your vendors/partners to provide anti-phishing training to all employees.
- Payment Account Information. If the vendor/partner will not be handling payment account information, add an affirmative obligation that the vendor/partner will not access, use, store, or process payment account information. If you are afraid that information might be inadvertently provided to the vendor/partner, consider adding a provision stating that if any payment account information is inadvertently provided to the vendor/partner, as long as they destroy it immediately and notify your company the vendor/partner will not be in breach of the affirmative obligation not to use payment account information. If your vendor/partner will handle payment account information, ensure you have appropriate language that covers both current and future PCI-DSS (Payment Card Industry Data Security Standard) versions. If appropriate, add language making clear that payment account information will be stored in active memory only, and not stored or retained on the vendor/partner’s servers (e.g., where the payment information is “tokenized” and/or securely transmitted to your company’s own servers at the time the transaction is processed).
- Information Security Questionnaire. Include the right to have the vendor/partner complete a written security questionnaire once a year signed by a corporate officer. Requiring an annual questionnaire can help identify whether your vendors/partners are on top of emerging threats and risks. If you have limited resources to conduct audits, the responses to the questionnaires can help you identify which vendors/partners may be best to audit. As part of the questionnaire, ask for copies of the vendor/partner’s disaster recovery plan and business continuity plan, and certificate of insurance for the vendor/partner’s cyber security policy if your company is named as an additional insured.
- Audit Rights. Include a right to do a security audit of a vendor/partner’s information technology and information security controls. This should include the right to conduct penetration testing of the vendor/partner’s network, ideally on an unannounced basis. Make sure the vendor/partner is obligated to correct any security discrepancies found at their expense; if they don’t make corrections to your reasonable satisfaction, you should be able to exit the contract. Ensure you can use internal and third party resources to conduct the training. In addition to a right to audit on a regular basis (e.g., once per year), allow the right to audit after a security breach so you can do your own analysis of how well the vendor/partner has bulletproofed their systems in light of a breach.
- Security Breach. Define what a “security breach” is (consider a broad definition that includes security incidents as well). Ensure the vendor/partner promptly notifies your company in the event of a security breach, ideally by email to a “role” mailbox or to your CIO/CTO. The vendor/partner should take any triage steps necessary to close the immediate security hole and then thoroughly review and bulletproof its systems and networks. The vendor/partner should agree to work with your company and any government entities in any investigation of the breach. Ensure that your company, not the vendor/partner, decides whether and how to communicate with affected individuals. Ensure the vendor/partner bears the costs associated with a security breach.
- Preservation Notices and E-Discovery. If the records of the vendor/partner may be important if litigation is brought against your company, consider adding a clause ensuring that the vendor/partner will comply with any document preservation/litigation hold notice you provide, and that the vendor/partner will reasonably assist with electronic discovery requests. A “friendly” clause like this can help avoid issues and strain on the partnership if litigation occurs.
Once you have these provisions in your agreement, don’t forget to tie them into your risk allocation provisions. If the vendor/partner carries insurance to protect against security breaches, ensure you are an additional insured and ask for a certificate of insurance annually. Ensure your indemnification section fully covers any breach of security obligations, and consider excluding these from your limitation of liability to the greatest extent possible.
When a consumer wants to no longer receive marketing communications from your company, both US anti-spam law (CAN-SPAM) and Canada anti-spam law (CASL) require you to provide a simple, easy-to-use unsubscribe mechanism. No one these days questions the importance of offering an unsubscribe link to recipients of commercial emails – failing to do so is one of the easier ways to get in trouble for noncompliance. However, I’ve seen many companies make the process too easy or unclear. Some use a one-click unsubscribe; others don’t provide a good experience for those seeking to change their marketing preferences.
Here are some simple guidelines on good hygiene for your unsubscribe process:
- Consider using an unsubscribe/manage preferences page, not a one-click unsubscribe. One-click unsubscribe means that as soon as a consumer clicks unsubscribe, it’s done and that consumer marketing record is off-limits. As an alternative, consider a landing page through which a consumer can choose from “layers” of unsubscribe options (e.g., unsubscribe from emails about Product X, unsubscribe from emails from Product Division Alpha, unsubscribe from all emails from Company), and/or manage their communication preferences. A person may initially think they want to unsubscribe, but on arriving at the page may instead realize he/she only wants to change or update their communication preferences to still receive some (but not all) communications. The complexity of the page should be driven by the available “layered” choices (if simple, use radio buttons; if complex, use separate sections for each choice with sub-options). You must allow the page visitor to take a final action from that page – you cannot use more than a single page plus the original click for unsubscribe requests. (You can include a link to a separate “manage preferences” page if preferred.)
- Design unsubscribe functionality to the principles of Simplicity, Clarity, Choice and Experience. Make it easy (but not too easy) for a consumer to opt out – you cannot make page visitors jump through hoops, and cannot ask them for additional personal information (other than email address) in order to unsubscribe. Ensure disclosures and the unsubscribe process are clear to the reasonable consumer. Provide alternatives to opting out (changes to frequency, content, or receipt point). Provide a good experience and ensure they leave on good terms.
- Clarify that they’ll still receive transactional emails. Where a page visitor can select to unsubscribe from all marketing emails, if appropriate consider language clarifying that they are unsubscribing from receiving all promotional emails, and that they’ll still receive transactional and relationship emails such as order confirmations and shipping notifications.
- Humanize the unsubscribe notice. Use the unsubscribe process to remind the page visitor that they are working with a company, not an automated computer system. Include your company’s branding on the unsubscribe/manage preferences page(s).
- Ask for feedback after confirming the unsubscribe or change in preferences. Lastly, consider asking for feedback about why they are unsubscribing or changing their preferences, AFTER you have confirmed the unsubscribe or preference change. This data can provide useful metrics to your organization to help shape your email and omni-channel marketing strategy.