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 providing the BitaBIZ SaaS Service as 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 take precedence over any similar provisions in other agreements between the parties.
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Three appendices are attached to the Clauses and form an integral part of them.
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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 subjects, 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 regarding 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 and appendices must be kept in writing, digitally, by both parties.
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The Clauses do not exempt the data processor from obligations under the General Data Protection Regulation (the GDPR) or other legislation.

The data controller is responsible for ensuring that the processing of personal data is carried out in compliance with the GDPR (see Article 24 GDPR), the applicable EU or Member State data protection laws, and the Clauses.
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The data controller has the right and obligation to decide the purposes and means of processing personal data.
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The data controller is also responsible 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 are specified in appendices A and C. Additional instructions may also be given by the data controller during the processing of personal data, but these instructions must 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, in the data processor’s opinion, instructions given by the data controller violate the GDPR or applicable EU or Member State data protection laws.

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 who have been granted access shall be reviewed periodically. Based on this review, access to personal data may be withdrawn if it is no longer necessary, and those people shall no longer have access to the personal data.
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At the data controller’s request, the data processor shall demonstrate that the relevant people under the data processor’s authority are subject to the above-mentioned confidentiality.

Article 32 GDPR states that, 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, the data controller and data processor must implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.

The data controller must assess the risks to the rights and freedoms of natural persons 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 must also—independently from the data controller—assess the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. To this end, the data controller shall provide the data processor with all information necessary to identify and assess such risks.
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Furthermore, the data processor shall assist the data controller in ensuring compliance with the data controller’s obligations under Article 32 GDPR, by inter alia providing the data controller with information about the technical and organizational measures already implemented by the data processor under Article 32 GDPR, along with any other information necessary for the data controller to comply with their obligations under Article 32 GDPR.
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If, in the data controller’s assessment, mitigating the identified risks requires further measures to be implemented by the data processor beyond those already in place under 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 not engage another processor (sub-processor) to fulfill 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 to engage sub-processors. The data processor shall inform the data controller in writing of any intended changes regarding the addition or replacement of sub-processors at least fifteen (15) calendar days in advance, giving the data controller the opportunity to object to such changes before the sub-processor(s) are engaged, as further described in Appendix B. The list of sub-processors already authorized by the data controller can be found in Appendix B, and updates to the list will be available in BitaBIZ’s Legal and Compliance Hub (link).
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Where the data processor engages a sub-processor to carry out specific processing activities on behalf of the data controller, the same data protection obligations as set out in the Clauses must be imposed on that sub-processor by contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures so that the processing meets the requirements of the Clauses and the GDPR.
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The data processor is therefore responsible for ensuring that the sub-processor at least complies with the obligations to which the data processor is subject under the Clauses and the GDPR.
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A copy of such a sub-processor agreement and any subsequent amendments shall—at the data controller’s request—be provided to the data controller, giving them 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 do not need to be provided to the data controller.

Only for Customers who are legally required to have a third-party beneficiary clause, the data processor, BitaBIZ, shall agree to a third-party beneficiary clause with the sub-processor whereby—if 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 instruct the sub-processor to erase the personal data.
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If the sub-processor does not fulfill their data protection obligations, the data processor remains fully liable to the data controller for the fulfillment of the sub-processor’s obligations. This does not affect the rights of data subjects under the GDPR—specifically those 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 take place based on documented instructions from the data controller and must always comply with Chapter V of the GDPR.
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If the data processor is required by EU or Member State law to transfer data to third countries or international organizations without instructions from the data controller, the data processor must inform the data controller of this legal requirement before processing, unless the law prohibits such notification for important reasons of public interest.
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Without documented instructions from the data controller, the data processor may not, under these Clauses:
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a. transfer personal data to a data controller or data processor in a third country or international organization
b. transfer the processing of personal data to a sub-processor in a third country
c. have the personal data processed 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 mechanism under Chapter V GDPR on which they are based, shall be set out in Appendix C.6.
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These Clauses should not be confused with standard data protection clauses as defined in Article 46(2)(c) and (d) GDPR, and the Clauses cannot be used by the parties as a transfer mechanism under Chapter V GDPR.

Taking into account the nature of the processing, the data processor shall assist the data controller by implementing appropriate technical and organizational measures, as far as possible, to help the data controller fulfill its obligations to respond to requests to exercise the data subject’s rights as set out in Chapter III GDPR.

This means the data processor shall, as far as possible, assist the data controller in complying with:
a. the right to be informed when collecting personal data from the data subject
b. the right to be informed when personal data has 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 restrict processing
g. the obligation to notify 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 under Clause 6.3., the data processor shall also, 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 notify the competent supervisory authority, The Danish Data Protection Agency, of a personal data breach without undue delay and, where feasible, no later than 72 hours after becoming aware of it, unless the breach is unlikely to result in a risk to the rights and freedoms of natural persons;
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b. the data controller’s obligation to notify the data subject of a personal data breach without undue delay when the breach is likely to result in a high risk to the rights and freedoms of natural persons;
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c. the data controller’s obligation to carry out a data protection impact assessment regarding the impact of the intended processing operations on the protection of personal data;
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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 unless the data controller takes measures to mitigate the risk.
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The parties shall specify 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 extent of the required assistance. This applies to the obligations set out in Clauses 9.1 and 9.2.

In the event of any personal data breach, the data processor shall notify the data controller of the breach without undue delay after becoming aware of it.

If possible, the data processor’s notification to the data controller shall take place within 48 hours after the data processor becomes aware of the personal data breach, to enable the data controller to fulfill its obligation to notify 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 competent supervisory authority of the personal data breach, meaning the data processor must help obtain the following information, which, under Article 33(3) GDPR, must be included in the data controller’s notification to the authority:
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a. The nature of the personal data breach, including, where possible, the categories and approximate number of data subjects affected and the categories and approximate number of personal data records affected;
b. the likely consequences of the personal data breach;
c. the measures taken or proposed 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 specify in Appendix C all the elements to be provided by the data processor when assisting the data controller in notifying the competent supervisory authority of a personal data breach.

Upon termination of the personal data processing service, the data processor is required to delete all personal data processed on behalf of the data controller and certify to the data controller that this has been done.
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The data processor shall provide the data controller with settings in the BitaBIZ SaaS Service, allowing the data controller to define how many months personal data registrations should be kept in the database, so that registrations older than the period defined by the data controller will be automatically deleted at set intervals.
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The data processor shall provide the data controller with settings in the BitaBIZ SaaS Service, allowing the data controller to define how many months personal data for individuals no longer associated with the data controller (inactive users) should be retained.

The data processor shall provide the data controller with all information necessary to demonstrate compliance with the obligations set out in Article 28 and these Clauses, and shall allow and contribute to audits, including inspections, conducted by the data controller or another auditor appointed by the data controller.

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

The data processor must provide supervisory authorities, who under applicable law have access to the data controller’s and data processor’s facilities, or representatives acting on behalf of such authorities, with access to the data processor’s physical facilities upon presentation of appropriate identification.

These Clauses take effect on the date they are agreed between the parties, whether by accepting the Terms of Use including these Clauses, by signing a version, or by any other valid means of forming an agreement.
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The Clauses apply for as long as personal data processing is provided in connection with the BitaBIZ SaaS Service. The Clauses cannot be terminated unless other Clauses governing personal data processing for the BitaBIZ SaaS Service are agreed between the parties. If the personal data processing for the BitaBIZ SaaS Service is terminated and the personal data is deleted or returned as per Clause 11.1 and Appendix C.4., the Clauses will automatically terminate.
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Both parties have the right to request renegotiation of the Clauses if changes in the law or impracticality of the Clauses require amendments.
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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) of any material changes to the Clauses at least fifteen (15) calendar days before the update takes effect. Unless the Customer objects in writing before the update takes effect, the updated Clauses will automatically apply to the SaaS Service. If the Customer objects to the updates and the parties cannot agree on a solution within the notice period, the current Clauses will continue to apply for the remainder of the Customer’s current subscription term, after which the Customer may choose not to renew the subscription.
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The rights and obligations under these Clauses also apply equally to the Customer’s wholly-owned subsidiaries and affiliates that have a BitaBIZ account, or whose personal data is processed via the Customer’s BitaBIZ account. The Customer agrees to inform such subsidiaries and affiliates of the terms and conditions included in these Clauses.

The data controller must always keep the contact person information up to date on the company information page in the subscription plan on the BitaBIZ Web-portal.
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The data processor can be contacted via the online support function in the BitaBIZ SaaS platform.