(Effective Date: May 25, 2018)
1. Scope and application
This Addendum will apply, on and from 25 May 2018, if required by Data Protection Legislation (as defined below) and only to the extent that, in providing any Alibaba Cloud Services to You, Alibaba Cloud processes as a processor personal data contained in or generated in relation to Your Member Content (the “Data”).
This Addendum forms part of Your Membership Agreement and capitalised terms not defined herein will have the meaning given in the Membership Agreement. In the event and to the extent of a conflict between the other terms of the Membership Agreement including its Addenda or any other agreements between You and Alibaba Cloud regarding the Data and this Addendum, this Addendum will prevail.
In this Addendum:
“controller”, “data subject”, “personal data”, “process”, “processor” and “supervisory authority” each has the meaning given in the GDPR.
“Data Protection Legislation” means, as applicable: (i) EU Directive 95/46/EC (ii) GDPR, and in each case, any related national laws, legislation, rules or regulations, related to privacy and data protection (including legislation made under or in relation to (i) and (ii)). For clarity, a reference to Data Protection Legislation, includes a reference to Data Protection Legislation as amended, modified, extended, re-enacted, consolidated or replaced from time to time.
“GDPR” means Regulation (EU) 2016/679.
“Standard Contractual Clauses” means the standard contractual clauses approved by European Commission Decision 2010/87/EU (or any subsequent decisions) or as referred to in Article 46 GDPR.
3. Description of processing
For the purposes of this Addendum, You (the controller or processor) appoint Alibaba Cloud as Your processor to process the Data, for the duration of the Membership Agreement, for the purpose of providing the Alibaba Cloud Services to You (the “Permitted Purpose”).
4. Data processing
In processing the Data under this Agreement, Alibaba Cloud shall:
(a) only process the Data on Your documented instructions unless required otherwise by applicable law;
(b) ensure that all personnel authorised by Alibaba Cloud to process the Data are subject to suitable confidentiality obligations;
(c) implement and maintain appropriate technical and organisational measures as described at https://www.alibabacloud.com/trust-center, designed to protect the Data processed by Alibaba Cloud against a personal data breach affecting such Data arising from a breach of Alibaba Cloud’s security (a “Security Incident”). Alibaba Cloud may change those measures from time to time, but not so as to reduce the level of protection for Data. In the event of a confirmed Security Incident, Alibaba Cloud shall notify You without undue delay and shall provide reasonable information and cooperation to You so that You can fulfil any data breach reporting obligations You may have under (and in accordance with the timescales required by) applicable Data Protection Legislation. Alibaba Cloud shall further take any reasonably necessary measures and reasonably necessary actions to remedy or mitigate the effects of the Security Incident, and shall keep You informed of all material developments in connection with the Security Incident;
(d) be generally authorised to engage third party subcontractors to process the Data for the Permitted Purpose, provided that Alibaba Cloud (i) shall remain fully liable for any of its subcontractors; (ii) shall maintain an up-to-date list of such subcontractors, which it shall update with details of any change in such subcontractors at least 10 days’ before any such change; and (iii) shall impose data protection terms on any subcontractor it appoints to process any Data, that require it to protect such Data to at least the standard required by applicable Data Protection Legislation. You may object to Alibaba Cloud’s appointment or replacement of such a subcontractor before its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Alibaba Cloud will either not appoint or replace the relevant subcontractor or, if this is not possible, You may terminate the relevant Service and this Addendum to the extent it applies to that Service, but without prejudice to any fees or costs incurred by You for that Service before that termination and without prejudice to the Membership Agreement, any other Services provided to You, and any fees or costs in relation to those other Services;
(e) assist You to respond to data subjects’ requests to exercise their rights regarding any Data under applicable Data Protection Legislation by providing You with technical measures to enable You, to the extent consistent with the functionality of the Alibaba Cloud Services and Alibaba Cloud’s role as a processor, to access, rectify, erase, restrict or export Data directly (and You agree that, taking into account the nature of the processing, this paragraph reflects the extent to which it is possible for Alibaba Cloud to provide You with such assistance). If a data subject, supervisory authority or any other party directly approaches Alibaba Cloud with any request, query or complaint regarding any Data, Alibaba Cloud shall, promptly notify You accordingly or notify that person that they should approach You instead;
(f) If Alibaba Cloud believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, promptly inform You and provide reasonable cooperation to You (at Your expense) in connection with any data protection impact assessment that You may be required under applicable Data Protection Legislation to undertake for Your use of Alibaba Cloud Services;
(g) at Your choice, delete or return all Data in Alibaba Cloud’s possession or control following the termination of the Membership Agreement. This requirement shall not apply to the extent that Alibaba Cloud is required or permitted by applicable law to retain some or all of the Data, or Data archived on back-up systems, in which event Alibaba Cloud shall securely isolate and protect such Data from any further processing except to the extent required by such law until deletion is possible; and
(h) use independent qualified third party security professionals and auditors, at Alibaba Cloud’s selection and expense, to (at appropriate regular intervals) verify the adequacy of its security measures, including the security of the data centers from which Alibaba Cloud provides the Alibaba Cloud Services, and generating audit reports and certifications thereof (“Report and Certification”). You acknowledge that Alibaba Cloud is regularly audited against many industry-recognised standards by independent third party auditors as described at https://www.alibabacloud.com/trust-center. Upon Your written request, and subject to Your execution of a non-disclosure agreement covering the Report and Certification (and verification that you are not a competitor of Alibaba Cloud), Alibaba Cloud will make available to you a summary copy of the Report and Certification demonstrating Alibaba Cloud’s compliance with the obligations set forth in this Addendum.
If the Standard Contractual Clauses apply to You, then You agree to exercise Your audit right by instructing Alibaba Cloud to execute the audit as described in this section. If You desire to change this instruction, then You have the right to do so as set forth in the Standard Contractual Clauses which change shall be requested in writing (for clarity, nothing in the foregoing shall require Alibaba Cloud to make available any data, material or information of any of Alibaba Cloud’s other customers).
5. Your responsibilities
(a) To comply with your obligations under all applicable Data Protection Legislation in relation to Your use of Alibaba Cloud Services for processing any personal data comprised within the Data.
(b) That this Addendum, the Membership Agreement, Your other applicable agreements with Alibaba Cloud and Your configuration and use of the Alibaba Cloud Services will together comprise Your complete and final documented instructions to Alibaba Cloud on the processing of Data.
(c) That You shall not give Alibaba Cloud as Your processor any instructions, nor shall You use the Alibaba Cloud Services in any way, that in any such case could infringe any Applicable Data Protection Legislation or could cause Alibaba Cloud or any of its affiliates to infringe any Applicable Data Protection Legislation.
6. International transfers
If the processing of Data involves transfers out of the EEA, Alibaba Cloud will take such measures as are necessary to ensure the transfer is in compliance with applicable Data Protection Legislation. Such measures may include (without limitation) transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorisation in accordance with applicable Data Protection Legislation, or to a recipient that has executed Standard Contractual Clauses.
You agree that the Standard Contractual Clauses in the Annex to this Addendum shall apply to any such transfers of the Data to Alibaba Cloud (Singapore) Private Limited (incorporated in Singapore with Company Reg. No. 201626368G) , except where Alibaba Cloud or its affiliates has provided any of the other measures as described above. If You are a processor of any Data, you enter into the Standard Contractual Clauses on behalf of the controller of such Data and you warrant that you have the controller’s authority to do so on its behalf.
(a) For clarity, the total aggregate liability of Alibaba Cloud and all its affiliates, employees, agents, affiliates, representatives or anyone acting on its behalf together, arising from or in connection with the Membership Agreement, this Addendum and/or the Standard Contractual Clauses or any matter arising therefrom shall not exceed the maximum liability of Alibaba Cloud as limited by the paragraph following Clause 11.5 of the Membership Agreement.
(b) Alibaba Cloud may modify the terms of this Addendum, for example to comply with applicable law or to implement any standard contractual clauses adopted by the European Commission or a supervisory authority under Article 28 of the GDPR, but it will not do so in a way that would reduce the protections required to be afforded to You under Article 28 of the GDPR. If it does so, it an amended and restated version on the Alibaba Cloud Platform, providing at least 15 days prior written notice of any material amendments to the Addendum to You (which may be posted on the Alibaba Cloud Platform or displayed in your Alibaba Cloud account). By continuing to use the relevant products or services after the receipt of written notification of such changes by Alibaba Cloud, you agree to be bound by the amended and restated Addendum.
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection You (the “data exporter”) and Alibaba Cloud (Singapore) Private Limited (incorporated in Singapore with Company Reg. No. 201626368G) (the “data importer”), each a “party”, together “the parties”, have upon the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
You are the data exporter.
Alibaba Cloud (Singapore) Private Limited is the data importer.
The data subjects may include Your customers, employees, supplier and end-users.
Categories of data
Capitalised terms not defined herein will have the meaning given in Your Membership Agreement with Alibaba Cloud.
The personal data includes any information, content, material and data in electronic format as may be contained in or generated in relation to Member Content.
The personal data will be processed for the purposes of providing You with the Services and as otherwise set out in the Agreement.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
The data exporter has implemented and shall maintain appropraite technical and organisational measures to protect personal data from against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction.
Alibaba Cloud will maintain administrative, physical, and technical measures for protection of the security, confidentiality and integrity of personal data uploaded to the Alibaba Cloud Services, as described in Alibaba Cloud Trust Center (URL: https://www.alibabacloud.com/trust-center). Alibaba Cloud may change those measures from time to time, but not so as to reduce the level of protection for Data.