These Contractual Clauses (the Clauses) set out the rights and obligations of the data controller and the data processor, when processing personal data on behalf of the data controller.
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The Clauses have been designed to ensure the parties’ compliance with Article 28(3) of Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).
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In the context of the provision of the BitaBIZ SaaS Service defined in the Terms of Use, the data processor will process personal data on behalf of the data controller in accordance with the Clauses.
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The Clauses shall take priority over any similar provisions contained in any other agreements between the parties.
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Three appendices are attached to the Clauses and form an integral part of the Clauses.
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Appendix A contains details about the processing of personal data, including the purpose and nature of the processing, type of personal data, categories of data subject and duration of the processing.
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Appendix B contains the data controller’s conditions for the data processor’s use of sub-processors and a list of sub-processors authorized by the data controller.
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Appendix C contains the data controller’s instructions with regards to the processing of personal data, the minimum-security measures to be implemented by the data processor and how audits of the data processor and any sub-processors are to be performed.
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The Clauses along with appendices shall be retained in writing digitally, by both parties.
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The Clauses shall not exempt the data processor from obligations to which the data processor is subject pursuant to the General Data Protection Regulation (the GDPR) or other legislation.

The data controller is responsible for ensuring that the processing of personal data takes place in compliance with the GDPR (see Article 24 GDPR), the applicable EU or Member State[1] data protection provisions and the Clauses.
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The data controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.
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The data controller shall be responsible, among others, for ensuring that the processing of personal data, which the data processor is instructed to perform, has a legal basis.

The data processor shall process personal data only on documented instructions from the data controller, unless required to do so by Union or Member State law to which the processor is subject. Such instructions shall be specified in appendices A and C. Subsequent instructions can also be given by the data controller throughout the duration of the processing of personal data, but such instructions shall always be documented and kept in writing, including electronically, in connection with the Clauses.
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The data processor shall immediately inform the data controller if instructions given by the data controller, in the opinion of the data processor, contravene the GDPR or the applicable EU or Member State data protection provisions.

The data processor shall only grant access to the personal data being processed on behalf of the data controller to people under the data processor’s authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need-to-know basis. The list of people to whom access has been granted shall be kept under periodic review. Based on this review, such access to personal data can be withdrawn, if access is no longer necessary, and personal data shall consequently not be accessible anymore to those people.
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The data processor shall, at the request of the data controller demonstrate that the concerned people under the data processor’s authority are subject to the abovementioned confidentiality.

Article 32 GDPR stipulates that, considering 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 people, the data controller and data processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.

The data controller shall evaluate the risks to the rights and freedoms of natural people inherent in the processing and implement measures to mitigate those risks. Depending on their relevance, the measures may include the following:
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a. Pseudonymization and encryption of personal data;
b. the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services;

c. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
d. a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
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According to Article 32 GDPR, the data processor shall also – independently from the data controller – evaluate the risks to the rights and freedoms of natural people inherent in the processing and implement measures to mitigate those risks. To this effect, the data controller shall provide the data processor with all the information necessary to identify and evaluate such risks.
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Furthermore, the data processor shall assist the data controller in ensuring compliance with the data controller’s obligations pursuant to Articles 32 GDPR, by inter alia providing the data controller with information concerning the technical and organizational measures already implemented by the data processor pursuant to Article 32 GDPR along with all other information necessary for the data controller to comply with the data controller’s obligation under Article 32 GDPR.
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If subsequently – in the assessment of the data controller – mitigation of the identified risks requires further measures to be implemented by the data processor, than those already implemented by the data processor pursuant to Article 32 GDPR, the data controller shall specify these additional measures to be implemented in Appendix C.

The data processor shall meet the requirements specified in Article 28(2) and (4) GDPR to engage another processor (a sub-processor).
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The data processor shall therefore not engage another processor (sub-processor) for the fulfilment of the Clauses without the prior general written authorization of the data controller.
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The data processor has the data controller’s general authorization for the engagement of sub-processors. The data processor shall inform in writing the data controller of any intended changes concerning the addition or replacement of sub-processors at least fifteen (15) calendar days in advance, thereby giving the data controller the opportunity to object to such changes prior to the engagement of the sub-processor(s) as per further instructions in Appendix B. The list of sub-processors already authorized by the data controller can be found in Appendix B.
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Where the data processor engages a sub-processor for carrying out specific processing activities on behalf of the data controller, the same data protection obligations as set out in the Clauses shall be imposed on that sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the Clauses and the GDPR.
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The data processor shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which the data processor is subject pursuant to the Clauses and the GDPR.
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A copy of such a sub-processor agreement and subsequent amendments shall – at the data controller’s request – be submitted to the data controller, thereby giving the data controller the opportunity to ensure that the same data protection obligations as set out in the Clauses are imposed on the sub-processor. Clauses on business related issues that do not affect the legal data protection content of the sub-processor agreement, shall not require submission to the data controller.

Only for Customers that are required by law to have a third party beneficiary clause, the data processor, BitaBIZ, shall agree to 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 the personal data.
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If the sub-processor does not fulfil his data protection obligations, the data processor shall remain fully liable to the data controller as regards the fulfilment of the obligations of the sub-processor. This does not affect the rights of the data subjects under the GDPR – those foreseen in Articles 79 and 82 GDPR – against the data controller and the data processor, including the sub-processor.

Any transfer of personal data to third countries or international organizations by the data processor shall only occur based on documented instructions from the data controller and shall always take place in compliance with Chapter V GDPR.
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In case transfers to third countries or international organizations, which the data processor has not been instructed to perform by the data controller, is required under EU or Member State law to which the data processor is subject, the data processor shall inform the data controller of that legal requirement prior to processing unless that law prohibits such information on important grounds of public interest.
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Without documented instructions from the data controller, the data processor therefore cannot within the framework of the Clauses:
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a. transfer personal data to a data controller or a data processor in a third country or in an international organization
b. transfer the processing of personal data to a sub-processor in a third country
c. have the personal data processed in by the data processor in a third country
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The data controller’s instructions regarding the transfer of personal data to a third country including, if applicable, the transfer tool under Chapter V GDPR on which they are based, shall be set out in Appendix C.6.
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The Clauses shall not be confused with standard data protection clauses within the meaning of Article 46(2)(c) and (d) GDPR, and the Clauses cannot be relied upon by the parties as a transfer tool under Chapter V GDPR.

Considering the nature of the processing, the data processor shall assist the data controller by appropriate technical and organizational measures, insofar as this is possible, in the fulfilment of the data controller’s obligations to respond to requests for exercising the data subject’s rights laid down in Chapter III GDPR.

This entails that the data processor shall, insofar as this is possible, assist the data controller in the data controller’s compliance with:
a. the right to be informed when collecting personal data from the data subject
b. the right to be informed when personal data have not been obtained from the data subject
c. the right of access by the data subject
d. the right to rectification
e. the right to erasure (the right to be forgotten’)
f. the right to restriction of processing
g. notification obligation regarding rectification or erasure of personal data or restriction of processing
h. the right to data portability
i. the right to object
j. the right not to be subject to a decision based solely on automated processing, including profiling
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In addition to the data processor’s obligation to assist the data controller pursuant to Clause 6.3., the data processor shall furthermore, taking into account the nature of the processing and the information available to the data processor, assist the data controller in ensuring compliance with:
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a. The data controller’s obligation to without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the competent supervisory authority, The Danish Data Protection Agency, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural people;
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b. the data controller’s obligation to without undue delay communicate the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural people;
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c. the data controller’s obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a data protection impact assessment);
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d. the data controller’s obligation to consult the competent supervisory authority, The Danish Data Protection Agency, prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the data controller to mitigate the risk.
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The parties shall define in Appendix C the appropriate technical and organizational measures by which the data processor is required to assist the data controller as well as the scope and the extent of the assistance required. This applies to the obligations foreseen in Clause 9.1. and 9.2.

In case of any personal data breach, the data processor shall, without undue delay after having become aware of it, notify the data controller of the personal data breach.

The data processor’s notification to the data controller shall, if possible, take place within 48 hours after the data processor has become aware of the personal data breach to enable the data controller to comply with the data controller’s obligation to notify the personal data breach to the competent supervisory authority, cf. Article 33 GDPR.
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In accordance with Clause 9(2)(a), the data processor shall assist the data controller in notifying the personal data breach to the competent supervisory authority, meaning that the data processor is required to assist in obtaining the information listed below which, pursuant to Article 33(3) GDPR, shall be stated in the data controller’s notification to the competent supervisory authority:
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a. The nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
b. the likely consequences of the personal data breach;
c. the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
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The parties shall define in Appendix C all the elements to be provided by the data processor when assisting the data controller in the notification of a personal data breach to the competent supervisory authority.

On termination of the provision of personal data processing service, the data processor shall be under obligation to delete all personal data processed on behalf of the data controller and certify to the data controller that it has done so.
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The data processor shall make available to the data controller, settings in the BitaBIZ SaaS Service, where data controller can define how many months that registrations of personal data shall be kept in the database and thereby registrations older than the period defined by data controller will automatically be deleted with defined intervals.
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The data processor shall make available to the data controller, settings in the BitaBIZ SaaS Service, where data controller can define how many months that personal data for persons not associated with the data controller any longer (inactive users), should be kept.

The data processor shall make available to the data controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 and the Clauses and allow for and contribute to audits, including inspections conducted by the data controller or another auditor mandated by the data controller.

Procedures applicable to the data controller’s audits, including inspections, of the data processor and sub-processors are specified in appendices C.7.

The data processor shall be required to provide the supervisory authorities, which pursuant to applicable legislation have access to the data controller’s and data processor’s facilities, or representatives acting on behalf of such supervisory authorities, with access to the data processor’s physical facilities on presentation of appropriate identification.

The Clauses shall become effective on the date of both parties’ signature or acceptance of the Terms of Use.
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Both parties shall be entitled to request the Clauses renegotiated if changes to the law or inexpediency of the Clauses should give rise to such renegotiation.
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The Clauses shall apply for the duration of the provision of personal data processing in connection with the BitaBIZ SaaS Service. For the duration of the provision of personal data processing BitaBIZ SaaS Service, the Clauses cannot be terminated unless other Clauses governing the provision of personal data processing BitaBIZ SaaS Service have been agreed between the parties.
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If the provision of personal data processing BitaBIZ SaaS Services is terminated, and the personal data is deleted or returned pursuant to Clause 11.1. and Appendix C.4., the Clauses will automatically be terminated.
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The rights and obligations under these Clauses shall extend to and apply equally to the Customer's wholly owned subsidiaries and affiliates that have a BitaBIZ account, or whose personal data is being processed via Customer's BitaBIZ account. The Customer agrees to inform such subsidiaries and affiliates of the terms and conditions included in these Clauses.

Data controller shall always keep the contact person in the company information page updated in the subscription plan on the BitaBIZ Web-portal.
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Data processor can be contacted via the online support function in the BitaBIZ SaaS platform.

These Clauses are effective as of the earlier of: (i) date the Customer creates a BitaBIZ account and accepts the Clauses via the online account creation flow, or if applicable on the date Customer signed the Clauses.
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BitaBIZ may update the Clauses from time to time, for example to reflect changes in applicable law, best practices, or sub-processors. BitaBIZ will notify the Customer in writing (including via the BitaBIZ online admin interface or by email) of any material changes at least fifteen (15) calendar days in advance of the update taking effect.