SWAG42

Data Processing Terms

This Data Processing Agreement («Agreement») forms an integral part of the Terms of Use and/or any other agreement governing the use of the SWAG42 platform (the «Principal Agreement») and is entered into between:

any legal entity using the Services and acting as a controller of personal data within the meaning of applicable data protection laws (the «Company»)

and

SWAG42 Sp. z o.o.
Mineralna 15A, 02–274 Warsaw, Poland
KRS: 0000957590, NIP: 5213960548
(the «Data Processor»)

(together as the «Parties»)

WHEREAS

(A) The Company acts as a Data Controller.

(B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.

(C) The Parties seek to implement a data processing agreement that complies with the GDPR.

(D) The Parties wish to lay down their rights and obligations.

IT IS AGREED AS FOLLOWS:

  1. 1. Definitions and Interpretation

    1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

    «Agreement» means this Data Processing Agreement and all Schedules;

    «Company Personal Data» means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;

    «Contracted Processor» means a Subprocessor;

    «Data Protection Laws» means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

    «EEA» means the European Economic Area;

    «EU Data Protection Laws» means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

    «GDPR» means EU General Data Protection Regulation 2016/679;

    «Data Transfer» means: a transfer of Company Personal Data from the Company to a Contracted Processor; or an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

    «Services» means services provided via the SWAG42 platform, including account management, communication, order fulfilment, logistics, complaint handling and related support services;

    «Subprocessor» means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.

    1.2 The terms «Commission», «Controller», «Data Subject», «Member State», «Personal Data», «Personal Data Breach», «Processing» and «Supervisory Authority» shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

  2. 2.Processing of Company Personal Data

    2.1 Processor shall:

    • comply with applicable Data Protection Laws;
    • process Company Personal Data only on documented instructions of the Company.

    2.2 The Company instructs Processor to process personal data for the following purposes:

    • provision of services via the SWAG42 platform;
    • user account management;
    • communication with users;
    • order fulfilment and delivery;
    • handling complaints;
    • providing technical and organisational support.

    2.3 The categories of personal data may include:

    • name and surname;
    • email address;
    • phone number;
    • delivery address;
    • IP address;
    • geolocation data;
    • account data;
    • complaint data (including bank account number where applicable).

    2.4 Categories of Data Subjects may include:

    • employees of the Company;
    • customers of the Company;
    • users acting on behalf of the Company.

  3. 3.Processor Personnel

    Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

  4. 4.Security

    4.1 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, Processor shall in relation to the Company Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

    4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

    4.3 Such measures may include, where appropriate:

    • pseudonymisation and encryption of personal data;
    • the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services;
    • the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
    • a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

  5. 5.Subprocessing

    5.1 The Company provides general authorisation for the use of Subprocessors.

    5.2 Subprocessors may include in particular:

    • hosting providers;
    • IT infrastructure providers;
    • analytics providers (including Google Analytics);
    • advertising providers (including Google Ads, Facebook);
    • communication tools;
    • payment providers;
    • accounting and legal service providers.

    5.3 Processor shall ensure that Subprocessors are bound by equivalent obligations.

    5.4 A list of Subprocessors shall be made available upon request.

  6. 6.Data Subject Rights

    6.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company's obligations to respond to requests to exercise Data Subject rights under applicable Data Protection Laws.

    6.2 Processor shall:

    6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

    6.2.2 ensure that it does not respond to that request except on the documented instructions of the Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall, to the extent permitted by Applicable Laws, inform the Company of that legal requirement before responding to the request.

  7. 7.Personal Data Breach

    7.1 Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

    7.2 Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

  8. 8.Data Protection Impact Assessment

    Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

  9. 9.Deletion or Return of Data

    9.1 Subject to this section 9, Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the «Cessation Date»), delete and procure the deletion of all copies of those Company Personal Data.

    9.2 Processor shall provide written certification to Company that it has fully complied with this section 9 within 10 business days of the Cessation Date.

  10. 10.Audit Rights

    10.1 Subject to this section 10, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.

    10.2 Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

  11. 11.Data Transfer

    11.1 The Processor may transfer personal data outside the EEA where necessary for the performance of the Services, including in connection with logistics, delivery, IT infrastructure and Subprocessors.

    11.2 In such cases, the Processor shall ensure that appropriate safeguards are in place in accordance with applicable Data Protection Laws, including, where applicable, the use of Standard Contractual Clauses (SCC) or other lawful transfer mechanisms.

    11.3 The Company hereby authorises such transfers, provided that the Processor complies with this Section.

  12. 12.General Terms

    12.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement («Confidential Information») confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

    (a) disclosure is required by law;

    (b) the relevant information is already in the public domain.

    12.2 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.

  13. 13.Governing Law and Jurisdiction

    This Agreement is governed by the laws of Poland.

    Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Warsaw, Poland, subject to possible appeal to the competent appellate courts of Poland.

  14. 14.Acceptance of this Data Processing Agreement

    This Data Processing Agreement forms an integral part of the Principal Agreement (including the Terms of Use of the SWAG42 platform).

    By registering an account, accessing or using the Services, the Company agrees to be bound by this Data Processing Agreement.

    This Agreement shall be deemed concluded upon acceptance of the Terms of Use or upon first use of the Services, whichever occurs earlier.