Data Processing Amendment
Introduction to this Amendment
Processing personal data in a secure, fair, and transparent way is extremely important to us at Attaquer. As part of this effort, we process personal data in accordance with the EU’s General Data Protection Regulation (“GDPR”), the EU/US Privacy Shield principles (“Privacy Shield”), the laws of Australia governing the handling of various types of personal data, and industry standards, such as PCI.
If you do not agree to this DPA, you may discontinue the use of the Attaquer’s services and cancel your account (if you have created one).
It is important that all parties understand what data and whose data is protected under this DPA. Each party has respective obligations to protect personal; therefore, the following definitions explain the scope of this DPA and the mutual commitments to protect personal data.
“Attaquer”, “we”, “us”, or “our” refers to the provider of the Attaquer website, products and services. “You” or “Customer” refers to the individual, company or organisation that uses the Attaquer website, orders Attaquer products, signs up for an account on the Attaquer website or to our mailing lists.
“Party” refers to Attaquer and/or the customer depending on the context.
“Personnel” refers to those individuals who are employed by or are under contract to perform a service on behalf of one of the parties. Personnel may have rights in their personal data (including business contact information) if they reside in the EU. It is important to be clear about how personnel’s rights are protected.
“Data Subjects” refers to those individuals residing in the EU who are consumers or users of Attaquer’s goods or services (also “consumers”), as well as any personnel who reside in the EU.
“Personal Data” is given the same meaning as in the GDPR which we summarise here as: any data relating directly or indirectly to an identifiable data subject. Personal data does not include any data that is anonymised, aggregated, de-identified and/or compiled on a generic basis and which does not name or identify a specific individual, directly or indirectly.
“Processing” is given the same meaning as in the GDPR, which we summarise as including: collecting, recording, using, storing, amending, adapting, disclosing, transferring or transmitting, structuring, using, combining, deleting or destroying, personal data (“Process” and “Processed” shall have similar meanings).
“Controller” is given the same meaning as in the GDPR, which we summarise as the party that determines the purposes and means of the processing of personal data – the customer is the controller with respect to consumer personal data. Each party may be the controller of personal data it processes about the other’s personnel.
“Processor” is the party that processes personal data on behalf of the controller – Attaquer is the processor of the personal data we process about you.
“Sub-processor” is a Third-party, independent contractors, vendors and suppliers who provide specific services and products related to the Attaquer website and our services, such as hosting, credit card processing and fraud screening, and mailing list hosting ("third-party" or "outside contractor" shall have similar meanings).
“Incident” means: (a) a complaint or a request with respect to the exercise of an individual’s rights under the GDPR; (b) an investigation into or seizure of the personal data by government officials, or a specific indication that such an investigation or seizure is imminent; or (c) any breach of the security and/or confidentiality as set out in this DPA leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, the personal data, or any indication of such breach having taken place or being about to take place.
For the sake of readability, we do not use initial capitalisation of defined terms in this DPA. Defined terms are defined terms, irrespective of their format.
1. Undertakings regarding personal data
Each party agrees that personal data shall be treated as confidential information under this DPA. In addition, each party shall at all times comply with applicable laws relating to data protection in the relevant jurisdiction with respect to each other’s personal data.
Personal Data shall remain the property of the disclosing party. Attaquer acknowledges that it is the controller and maintains control over data subject’s personal data.
Attaquer will process customer’s personal data only to the extent strictly necessary for the purpose of providing the services in accordance with the ToS and any further written instructions from the customer that are mutually agreed upon in writing. Attaquer agrees that:
- it will implement and maintain a reasonable and appropriate security program comprising adequate security, technical and organisational measures to protect against unauthorised, unlawful or accidental processing, use, erasure, loss or destruction of, or damage to, customer personal data;
- it will not modify, alter, delete, publish or disclose any customer personal data to any third party, nor allow any third party to process such personal data on Attaquer’s behalf unless the third party is bound to similar confidentiality and data handling provisions;
- only its personnel who “need-to-know” will be given access to customer personal data to the extent necessary to perform its obligations under the ToS. It shall provide adequate training to its staff and ensure that they comply with the obligations in this DPA; and
- it will only process customer personal data to the extent necessary to perform its obligations under the ToS, upon written instructions of the customer (only as mutually agreed upon), and in accordance with applicable laws. Upon termination of your account Attaquer will delete, destroy, or anonymise the personal data in accordance with our standard backup and retention policy per the ToS, normally, no later than 60 days, unless we are required to retain personal data due to Australian State or Federal laws; in which case Attaquer reserves the right to retain personal data.
The parties acknowledge that customer may from time to time be in possession of personal data relating to Attaquer’s personnel. Attaquer warrants that it has provided all necessary notifications and obtained all necessary consents, authorizations, approvals and/or agreements as required under any applicable law in order to enable: (i) the disclosure of Attaquer’s personal data to customer; and (ii) further processing of such Attaquer personal data by customer.
2. Customer undertakings and Attaquer’s assistance
Customer warrants that it has all necessary rights to provide to Attaquer the personal data for processing in connection with the provision of Attaquer’s services.
Attaquer shall assist the customer by implementing appropriate technical and organisational measures, insofar as this is reasonably and commercially possible (in Attaquer’s sole determination and discretion), in fulfilling customer’s obligations to respond to individuals’ requests to exercise rights under the GDPR.
3. Incident Management
When either party becomes aware of an incident that impacts the processing of personal data, it shall promptly notify the other about the incident and shall reasonably cooperate in order to enable the other party to perform a thorough investigation into the incident, to formulate a correct response, and to take suitable further steps in respect of the incident.
Both parties shall at all times have in place written procedures which enable them to promptly respond to the other about an incident. Where the incident is reasonably likely to require a data breach notification under applicable laws, the party responsible for the incident shall notify the other without undue delay of having become aware of such an incident.
Any notifications made under this section shall be made to email@example.com (when made to Attaquer) and to our point of contact with you (when made to the customer), and shall contain:(i) a description of the nature of the incident, including, where possible, the categories and approximate number of individuals concerned and the categories and approximate number of records concerned; (ii) the name and contact details of the point of contact where more information can be obtained; (iii) a description of the likely consequences of the incident; and (iv) a description of the measures taken or proposed to be taken to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
4. Liability and Indemnity
Each party indemnifies the other and holds them harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the indemnified party and arising directly or indirectly out of or in connection with a breach of this DPA.
5. Duration and Termination
This DPA shall come into effect on May 25, 2018 and shall continue until it is changed or terminated in accordance with the ToU.
Termination or expiration of this DPA shall not discharge the parties from the confidentiality obligations herein.