Terms & Conditions

DATA PROCESSING AGREEMENT

  1. Clauses. The following clauses (clauses) constitute the content of the Data Processing Agreement concluded between the Seller (Controller) and 3e (Processor) and have been drafted on the basis of COMMISSION IMPLEMENTING DECISION (EU) 2021⁄914 of June 4, 2021 on standard contractual clauses for the transfer of personal data to third countries under Regulation (EU) 2016⁄679 of the European Parliament and of the Council. The clauses are without prejudice to the obligations to which the data exporter is subject under Regulation (EU) 2016⁄679.
  2. Interpretation and hierarchy. Where these Clauses use terms that are defined in Regulation (EU) 2016⁄679, those terms shall have the same meaning as in that Regulation. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016⁄679. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016⁄679. In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
  3. Entrustment of Processing. The Controller entrusts the Processor with the customers’ personal data necessary for the execution of Transactions concluded via the Online Market, including contact information obtained as part of the electronic ordering procedure, e.g. name, surname, delivery address, e-mail address, telephone number, user-agent, comments, for processing in order to: execute the aforementioned agreements, including enabling data subjects to log in and use the Online Market, to conclude and execute Transactions, and to ensure security, in particular - prevention of hacking attacks - Article 6(1)(b) of the GDPR (processing for the performance of the agreement). When using loyalty modules, customers’ personal data may also include gender, date of birth, and preferences.
  4. Security Measures. In order to ensure an adequate level of security, taking into account the nature, scope, context and purpose of the processing, as well as the risk of violation of the rights and freedoms of individuals, the Processor shall apply the following technical and organizational security measures:
    1. enabling pseudonymization and encryption of personal data;
    2. ensuring the ability to continuously ensure the confidentiality, integrity, availability and resilience of processing systems and services;
    3. ensuring the ability to quickly restore the availability of and access to personal data in the event of a physical or technical incident;
    4. processes to regularly test, measure and evaluate the effectiveness of technical and organizational measures to ensure the security of processing;
    5. enabling the identification and authorization of users;
    6. ensuring the protection of data during transmission and storage;
    7. to ensure the physical security of the locations where personal data is processed;
    8. enabling the registration of events;
    9. for system configuration, including default configuration;
    10. concerning the management of the internal IT system and IT security;
    11. ensuring data minimization, adequate data quality, limited data retention, accountability;
    12. enabling data portability and ensuring data deletion.
  5. Instructions. The Processor shall process the personal data only on documented instructions from the Controller. The Controller may give such instructions throughout the duration of the contract. The Processor shall immediately inform the Controller if it is unable to follow those instructions.
  6. Purpose limitation. The Processor shall process the personal data only for the specific purpose(s) of the transfer, as set out in point 3, unless on further instructions from the Controller.
  7. Processing period. Processing will only take place during the time the Controller is using the Online Market.
  8. Security of processing. In order to ensure the security of personal data, the Processor shall implement, at a minimum, the technical and organizational measures specified in point 4. Ensuring data security includes protecting the data from security breaches leading to accidental or unlawful destruction, loss, modification, unauthorized disclosure or unauthorized access to the data (personal data breach). The Processor shall grant members of its staff access to the personal data being processed only to the extent strictly necessary for the performance, management and monitoring of the contract. The Processor shall ensure that persons authorized to process the personal data received commit to confidentiality or are subject to the relevant statutory duty of confidentiality.
  9. Documentation and compliance. The Processor shall make available to the Controller all information necessary to demonstrate compliance with the obligations which are set out in these clauses and which arise directly from Regulation (EU) 2016⁄679 or Regulation (EU) 2018⁄1725. At the request of the Controller, the Processor shall also authorise and participate in audits of processing activities. These audits shall be carried out at reasonable intervals or if there are indications of non-compliance. When deciding on a review or audit, the Controller may take into account the relevant certifications that the Processor has. The Controller may conduct the audit itself or authorise an independent auditor to conduct the audit. Audits may also include an inspection of the Processor’s physical premises or facilities. These audits shall be carried out, giving reasonable notice where appropriate. The parties shall make the information referred to above, including the results of any audits, available to the competent supervisory authority(ies) upon request.
  10. Use of sub-processors. The Processor entrusts data processing to Microsoft as part of its use of the Azure service. Information on data processing under this service is available here. The Processor has the Controller’s general authorisation for the engagement of sub-processor(s). The Processor shall specifically inform the Controller in writing of any intended changes through the addition or replacement of sub-processors at least 14 days in advance, thereby giving the Controller sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The Processor shall provide the Controller with the information necessary to enable the Controller to exercise its right to object. Where the Processor engages a sub-processor to carry out specific processing activities (on behalf of the Controller), it shall do so by way of a contract that provides for, in substance, the same data protection obligations as those binding the Processor under these clauses, including in terms of third-party beneficiary rights for data subjects. The Processor shall ensure that the sub-processor complies with the obligations to which the data the Processor is subject pursuant to these Clauses. The Processor shall provide, at the Controller’s request, a copy of such a sub-processor agreement and any subsequent amendments to the Controller. To the extent necessary to protect business secrets or other confidential information, including personal data, the Processor may redact the text of the agreement prior to sharing a copy. The Processor shall remain fully responsible to the Controller for the performance of the sub-processor’s obligations under its contract with the Processor. The Processor shall notify the Controller of any failure by the sub-processor to fulfil its obligations under that contract. The Processor shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the Processor has factually disappeared, ceased to exist in law or has become insolvent – the Controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
  11. Data subject rights. The Processor shall promptly notify the Controller of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the Controller. The Processor shall assist the Controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016⁄679. In this regard, the Parties shall set out the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required. In fulfilling its obligations the Processor shall comply with the instructions from the Controller.
  12. Redress. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them. Where the data subject invokes a third-party beneficiary right, the data importer shall accept the decision of the data subject to (i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 14; (ii) refer the dispute to the competent courts within the meaning of Clause 20. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016⁄679. The data importer shall abide by a decision that is binding under the applicable EU or Member State law. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
  13. Liability. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these clauses. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses. Notwithstanding the above, the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016⁄679 or Regulation (EU) 2018⁄1725, as applicable. The Parties agree that if the data exporter is held liable for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties. The Parties agree that if one Party is held liable, it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
  14. Supervision. [Where the data exporter is established in an EU Member State] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016⁄679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority. [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016⁄679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016⁄679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016⁄679 is established, as indicated in Annex I.C, shall act as competent supervisory authority. [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016⁄679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016⁄679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, shall act as competent supervisory authority. Where personal data is transferred from a third country the data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
  15. Local laws and practices affecting compliance with the clauses. Where personal data is transferred from a third country: (a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016⁄679, are not in contradiction with these Clauses. (b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements: (i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred; (ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards; (iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination. (⁠c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses. (d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request. (e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). The data exporter shall forward the notification to the controller. (f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 18 (d) and (e) shall apply.
  16. Notification. (a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it: (i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or (ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer. The data exporter shall forward the notification to the controller. (b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter. (⁠c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.] (d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (⁠c) for the duration of the contract and make it available to the competent supervisory authority on request. (e) Paragraphs (a) to (⁠c) are without prejudice to the obligation of the data importer pursuant to Clause 15(e) and Clause 18 to inform the data exporter promptly where it is unable to comply with these Clauses.
  17. Review of legality and data minimisation. (a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 15(e). (b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. The data exporter shall make the assessment available to the controller. (⁠c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
  18. Non-compliance with the Clauses and termination. (a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason. (b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 15(f). (⁠c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where: (i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension; (ii) the data importer is in substantial or persistent breach of these Clauses; or (iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses. In these cases, it shall inform the competent supervisory authority and the controller of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. (d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (⁠c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law. (e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016⁄679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016⁄679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016⁄679.
  19. Applicable law. The clauses shall be governed by the laws of Poland.
  20. Jurisdiction. Any disputes arising under the Clauses shall be settled by the courts of the Republic of Poland. The data subject may also initiate legal proceedings against the data exporter or the data importer before the courts of the Member State in which he has his habitual residence.