LUMINA HEALTH CUSTOMER TERMS OF SERVICE
These Customer Terms of Service for Lumina Health Services (“Customer Terms of Service”) are entered into as of the Effective Date, and are made by and between Lumina Health Limited, incorporated and registered in England and Wales with company number 13473052 whose registered office is at Bank House, 81 St Judes Road, Englefield Green, Surrey TW20 0DF, United Kingdom (“Lumina Health”) and the customer executing the Customer Order Form (“Customer”) (together, the “Parties”).
It is recorded and agreed that:
1.1 Customer requires the Services for its Users.
1.2 Lumina Health has agreed to provide the Services to Customer, and Customer has agreed to receive and pay for the Services, on the terms and conditions recorded in the Agreement.
Unless otherwise specified in the Agreement, the following terms will have the following meanings:
2.1 “Agreement” means, collectively, these Customer Terms of Service and the Customer Order Form, including any annexures and/or schedule/s attached hereto or incorporated by reference.
2.2 “Content” means all of the content hosted on the Platform, including but not limited to the training and educational content, and including still images, text, assessment content, care plans, onboarding forms, diagnostic aids, tutorials, questions, assignments, model answers, surveys, course collateral, video content, graphic designs, audio recordings, multimedia programmes and computer programmes and/or software.
2.3 “Copyright” means the copyright in and to the Platform and the Content.
2.4 “Customer Order Form” means the sales order form in terms of which Customer subscribes to the Services and ticks a checkbox to accept or agree to these Customer Terms of Service.
2.5 “Effective Date” means the date of commencement of the Services as set out in the Customer Order Form, failing which, the date of Customer’s purchase of the subscription to the Services.
2.6 “Intellectual Property” means all and any Intellectual Property Rights in and to the Platform and the Content (including the software and systems relating to the Platform), and the Copyright, and includes patents, rights to inventions, copyright and related rights, all other rights of copyright, trademarks, trade names and domain names, business names, logos, service marks, moral rights, know-how, business methods and trade secrets, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, database rights and any other intellectual property rights (including but not limited to moral rights), in each case whether registered or unregistered and including all applications (and right to apply) for, and renewals, extensions or revivals of, such and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future and in any part of the world (and “Intellectual Property Rights” means any ownership, license or associated rights relating to Intellectual Property).
2.7 “Patient(s)” means the patients of Customer that receive Customer’s healthcare services and that may be given access to the Patient App by Customer] via the Platform.
2.8 “Patient App” means the Lumina Health application that can be accessed/downloaded onto a mobile device by Patients.
2.9 “Platform” means the Lumina Health learner management system and healthcare portal, made up of the Lumina Health software and/or Content as a service, which is hosted by Lumina Health or its hosting providers and which is accessed by Customer and its Users via the internet.
2.10 “Representatives” means all directors, employees, consultants, agents and subcontractors that Lumina Health engages in relation to the Services.
2.11 “Services” means the services that Customer, subscribes to in the Customer Order Form, and includes the provision of the Content via the Platform, and the non-exclusive license to make use of these Services for the duration of the Agreement and in accordance with its terms.
2.12 “Users” means Customer, or the principal healthcare provider(s) for whose benefit the Customer company is registered, and Customer’s practice manager, or such similar person appointed by Customer, who will be given access to the Platform and the Content in terms of the Agreement.
The Agreement will come into force and effect on the Effective Date. Customer hereby appoints Lumina Health with effect from the Effective Date to provide the Services in accordance with the Agreement and Lumina Health hereby accepts such appointment. The Parties agree that the Agreement will govern the relationship between them with regard to the provision of the Services.
4. THE CONTENT AND THE PLATFORM
4.1 Lumina Health hereby grants to Customer the right to access the Content on the Platform for the duration of the Agreement and the renewal period, if applicable, subject to the terms and conditions of the Agreement, including inter alia that there has been no breach of the Agreement and all amounts due in terms of the Agreement have been paid on or before due date.
4.2 Customer will use the Content for the limited purpose of training and educating Users and diagnosing and managing Patients and for no other purpose whatsoever.
4.3 Customer will have access to the Content stated in the Customer Order Form.
4.4 Customer will determine and will advise Lumina Health in writing who will be the Users. Customer will be responsible for the Users’ conduct while accessing the Platform and will be liable for any damages, loss or claims howsoever arising from or relating to the use or misuse of, or access to, the Platform by the User/s.
4.5 Customer and the Users will not in any way whatsoever and without limitation edit, alter, copy, reproduce, transmit, perform, create derivative works of, grant any rights in respect of, publish, or disseminate any of the Content or any portion thereof; disassemble or reverse engineer the Content or any part thereof; and/or do anything or allow the doing of anything, which may have the effect of circumventing, disabling, damaging or impairing the Platform or the Content or any portion of either and, in particular, the Platform’s control or security systems.
4.6 Customer and the Users will at all times be subject to the User Terms of Service contained on the Platform as updated from time to time. If any terms of the User Terms of Service conflict with the terms contained in the Agreement, the terms of the Agreement shall apply.
5. INFORMATION USAGE
5.1 Customer agrees that Lumina Health may electronically collect, store and use the following of the User’s information:
5.1.1 Personal data (also referred to as personal information or personally identifiable information) within the meaning of privacy laws applicable to Customer including the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the Protection of Personal Information Act (Act No. 4 of 2013)(“POPI” and the UK’s retained EU law version of the GDPR as implemented by the Data Protection Act 2018 (UK GDPR) (“Personal Data”), including name, email address, phone number, physical address, practitioner code, medical practice registration number and financial data (bank account and/or payment card details);
5.1.2 Internet usage information, including Internet protocol (“IP”) address, the dates and times that the User accesses the Platform, and time spent on the Platform; and
5.1.3 Personal Data of its Patients, including name, email address, phone number and health information.
5.2 With respect to data that may qualify as Personal Data, the Customer shall, in its use of the Services provided by Lumina Health hereunder, collect, access, use, store, disclose, dispose of, transfer and otherwise process the Personal Data of Customer, its Users and its Patients in accordance with the requirements of applicable data protection laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of such Personal Data, the means by which Customer acquires such Personal Data, and the means by which Customer collects, stores, processes and transmits such Personal Data. Customer shall collect, store, process and transmit to Lumina Health the Personal Data of Customer, its Users and its Patients in accordance with the requirements of all applicable laws and warrants that it has the necessary consents and permissions required to provide the Personal Data to Lumina Health. Customer agrees to indemnify and hold Lumina Health and its Representatives harmless from any claims, actions, proceedings, losses, damages, expenses and costs related to the foregoing.
5.3 The information provided by Customer or the Users may be used by Lumina Health and/or its Representatives to communicate product releases, functionality updates and enhancements, to remember a User’s information in order that they do not have to re-enter such information for log-in purposes, and to track entries, submissions and the status in connection with the usage of the Platform.
5.4 Lumina Health acknowledges and agrees that Customer owns and retains all right, title and interest in and to the data, information and material with respect to its business and operations that it uploads or that results from its use of the Services (the “Customer Data”). Customer acknowledges and agrees that Lumina Health owns and retains all right, title and interest in and to the Derived Data. “Derived Data” means (i) Customer Data that has been processed, anonymized, aggregated and/or manipulated by or on behalf of Lumina Health to such a degree that it cannot be identified by visual inspection as originating directly from Customer Data and cannot be reverse-engineered such that it can be so identified; (ii) usage data and Customer Data i aggregated form used for security and operations management, to create statistical analyses, for research and development purposes and incorporated into aggregated and anonymized data sets for the purpose of improving and commercializing products, software, technology and services of Lumina Health and its affiliates; and (iii) any general information or insight that is derived by or on behalf of Lumina Health in connection with the provision of the Services.
5.5 The Parties agree to the terms of the Data Processing Agreement attached hereto as Appendix A.
6.1 The Agreement comes into force on the Effective Date and continues thereafter for the term set out on the Customer Order Form (the “Term”).
6.2 Where the Term is month to month:
6.2.1 Customer can give written notice to Lumina Health to cancel the Agreement at any stage; and
6.2.2 The Agreement will then terminate at the end of the current monthly billing cycle, provided that sufficient notice is given with that billing cycle for Lumina Health to implement the termination.
6.3 Where the Term is annual:
6.3.1 Customer must give written notice to Lumina Health to cancel the Agreement at least one (1) month prior to the expiry of the current twelve (12) month period;
6.3.2 Failing which the Agreement will be automatically renewed for an additional twelve (12) month period.
7.1 As remuneration for the Services provided by Lumina Health to Customer in terms of the Agreement, Customer will pay to Lumina Health the fees as set out in the Customer Order Form, payable in advance.
7.2 Customer shall make all payments under the Agreement without withholding or deduction of, or in respect of, any tax, levy, duty, charge or fee unless required by law. If any such withholding or deduction is required, Customer shall pay to Lumina Health such additional amount as will ensure that Lumina Health receives the same total amount that it would have received if no such withholding or deduction had been required.
7.3 Fees are subject to an annual escalation at a rate as determined by Lumina Health at the time.
7.4 All and any amounts due to Lumina Health by Customer will be paid by:
7.4.1 Payment card, via the payment card method and instructions as provided by Lumina Health to Customer; or
7.4.2 Electronic funds transfer into the nominated bank account of Lumina Health within seven (7) days of the date of Lumina Health’s invoice; or
7.5 Late payments shall be subject to interest at the rate of 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%, calculated daily and compounded monthly from due date until date of payment, which interest shall be payable by Customer to Lumina Health on demand.
7.6 Lumina Health is entitled to set off or deduct any amount due to it by Customer from any payment made or due to Customer.
8. OWNERSHIP OF THE INTELLECTUAL PROPERTY
8.1 It is recorded and agreed that all of the rights in and to all and any Intellectual Property in the Content and the Platform, whether registered or not, vests in Lumina Health or its third party licensors and nothing contained or implied in the Agreement will derogate from Lumina Health’s or its third party licensors Intellectual Property Rights in any way whatsoever.
8.2 Lumina Health’s Intellectual Property may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited in whole or in part in any way whatsoever, without Lumina Health’s express prior written consent.
9. LIABILITY AND INDEMNITY
9.1 IP Indemnification. Lumina Health shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Services as delivered to Customer and used as authorized in the Agreement infringes or misappropriates any patent, copyright, trademark, trade secret or other intellectual property right of any third party; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Lumina Health; provided that Customer provides Lumina Health: (a) prompt written notice of; (b) sole control over the defence and settlement of; and (c) all information and assistance reasonably requested by Lumina Health in connection with the defence or settlement of, any such claim. If any such claim is brought or, in Lumina Health’s judgment may be threatened, Lumina Health may, at its sole option and expense: (w) procure for Customer the right to continue to use the applicable Services; (x) modify the Services to make it non-infringing; (y) replace the Services with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Agreement, and refund a pro rata portion of unused and pre-paid fees for the outstanding balance of the Agreement’s term.
9.2 Limitations. Notwithstanding clause 9.1, Lumina Health will have no liability to Customer for any claim arising out of or based upon: (i) use of the Services in combination with software, products or services not provided by Lumina Health; (ii) any modification of the Services not made or authorized in writing by Lumina Health; (iii) Customer’s failure to use the Services in accordance with the Agreement or documentation provided by Lumina Health, or otherwise using the Services for purposes for which it was not designed or intended; or (iv) use of any specified release of the Services after Lumina Health notifies Customer that continued use of such release may subject Customer to a claim of infringement, if Lumina Health provides a replacement release.
9.3 Disclaimer. THE FOREGOING PROVISIONS OF THIS CLAUSE 10 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF LUMINA HEALTH, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR ANY PART THEREOF.
9.4 Indemnification by Customer. Customer shall: (i) defend, or at its option settle, any claim brought against Lumina Health and its affiliates by a third party arising out of or in connection with (a) any data provided or made available by or on behalf of Customer in terms of clause 6 of the Agreement or otherwise or (b) Customer’s use of the Services other than pursuant to the Agreement; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Customer provided that Lumina Health provides Customer with prompt written notice of and sole control over the defence and settlement of any such claim as well as all information and assistance reasonably requested by Customer in connection with the defence or settlement of any such claim.
9.5 Limitation of liability. Unless otherwise expressly provided in the Agreement, the Parties’ liability to one another under the Agreement, howsoever arising, shall be limited to direct damages and losses only and in no event shall either Party be liable for any business interruption, loss of use, profit, anticipated profit, contracts, revenues, goodwill, anticipated savings, business information, data or other pecuniary loss; and/or consequential, incidental or indirect losses; and/or special or other damages arising out of the Agreement regardless of whether such liability is based on breach of contract, delict, strict liability or otherwise.
9.6 Notwithstanding clause 9.5, Lumina Health’s total liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total fees actually paid by Customer in the previous 12 (twelve) months in respect of the Services to which such liability is connected or relates.
9.7 Any limitation of liability set out in the Agreement shall not operate to exclude any liability of a Party arising as a result of (a) that Party’s fraudulent conduct; (b) any death or bodily injury caused by that Party’s negligence or wilful misconduct; (c) a Party’s indemnification obligations set out in the Agreement (except for Lumina Health’s indemnification obligation in clause 10.1, which shall be limited as described in this clause 9).
9.8 In this clause 9 any reference to Lumina Health shall also include all of its Representatives.
10. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES, SUPPORT AND PROFESSIONAL SERVICES INCLUDING BUT NOT LIMITED TO THE PLATFORM AND THE CONTENT ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. LUMINA HEALTH AND ITS REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM CONDUCT OR COURSE OF DEALING. LUMINA HEALTH AND ITS REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR WILL WORK WITHOUT INTERRUPTIONS. USE OF THE SERVICES REQUIRES ACCESS TO THE INTERNET WITH CUSTOMER ASSUMING ALL RISKS INHERENT IN SUCH ACCESS.
Customer may not cede, assign or otherwise dispose of its rights and obligations in terms of the Agreement without the prior written consent of Lumina Health. Lumina Health may cede, assign or otherwise dispose of its rights and obligations in terms of the Agreement. The benefits and obligations of the Agreement shall inure to and be binding upon successors and assigns.
12. RIGHTS OF TERMINATION ON BREACH AND EARLY TERMINATION
12.1 Either Party (the “Aggrieved Party”) may terminate the Agreement immediately by giving written notice to the other Party (the “Defaulting Party”) if any of the following events occurs:
12.1.1 The Defaulting Party has failed to make payment of any sum due and payable under the Agreement within 14 (fourteen) days of written notice from the Aggrieved Party specifying the amount and nature of the sum due and requiring it to be paid; or
12.1.2 The Defaulting Party commits any material breach of any of the provisions of the Agreement and fails to remedy it within 14 (fourteen) days after receiving a written notice from the Aggrieved Party containing full particulars of the material breach and requiring it to be remedied.
12.2 Termination of the Agreement for any reason shall not affect the accrued rights of the Parties arising in any way out of the Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other and all provisions which are expressed to survive the Agreement shall remain in force and effect.
12.3 Suspension of Services: Notwithstanding anything to the contrary, Lumina Health may suspend Customer’s and the User’s access or use of the Services in the event of (a) Customer’s material, uncured breach of the Agreement, including without limitation failure to make payment of any sum due and owing; (b) an actual or reasonably suspected security threat reasonably requiring suspension of the Services to protect or prevent damage to Lumina Health’s data or the data of other customers, or to Lumina Health’s platform or IT infrastructure; or (c) Lumina Health reasonably believes that Customer’s access or use of the Services violates any applicable law, rule or regulation.
13.1 All communications between the Parties, and all information and other materials supplied to or received by either of them from the other (the “Confidential Information”) shall be kept confidential by the Parties unless or until the Party receiving the Confidential information (the “Receiving Party”) can reasonably demonstrate that the Confidential Information (or the relevant portion thereof) is already in the public domain through no fault of its own; has been lawfully obtained from any third party who/which was under no obligation to keep such communication, information or material confidential; is already lawfully known to the Receiving Party at the time that it receives such information (and the Receiving Party is under no prior obligation to keep such information confidential); or is disclosed by the Receiving Party to satisfy the order of a court of competent jurisdiction or of a governmental or regulatory body, or to comply with the provisions of any law or regulation in force from time to time. The aforementioned is provided that in these circumstances the Receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose; and use its reasonable endeavours to protect the confidentiality of such Confidential Information to the fullest extent practicable.
13.2 The Parties shall use all reasonable endeavours to procure the observance of these restrictions and shall take all reasonable steps to minimise the risk of disclosure of Confidential Information.
13.3 The obligations contained in this clause 14 shall endure, even after the termination of the Agreement for whatever reason.
14. DISPUTE RESOLUTION AND GOVERNING LAW
14.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter will be governed by and construed in accordance with the laws of England and Wales.
14.2 The Parties hereby consent to the exclusive jurisdiction of the courts of England and Wales in connection with any action that may be filed in connection with the Agreement.
15.1 No relaxation of the terms of the Agreement and no indulgence which one Party may grant to the other, will in any way operate as an estoppel against the former Party or be deemed to be a waiver of its rights, or in any other way limit, alter or prejudice those rights.
15.2 No variation or modification of the Agreement is of any force or effect unless reduced to writing and signed by the Parties or by another form of affirmative consent (for example, ticking a checkbox or clicking a link).
15.3 Each clause or part thereof in the Agreement is separate and severable from the rest of the Agreement, unless severing would render the Agreement unlawful. Should any clause or part thereof be unenforceable, it will not affect the enforceability of the rest of the Agreement.
15.4 The Agreement contains the whole agreement between the Parties. Neither Party will have any right or remedy arising from any undertaking, warranty or representation not included in the Agreement.
15.5 The Parties to the Agreement choose the following addresses as their chosen service addresses for the purposes of the Agreement:
81 St Judes Road
Englefield Green, Surrey
Attention: David Loubser
Email copy to: david@Luminapain.com
As set forth in the Customer Order Form
15.6 Any notice given to a Party under or in connection with the Agreement shall be in writing and shall be:
15.6.1 Delivered by hand or by next working day delivery service at the address above; or
15.6.2 Sent by email to the address above.
15.7 Any notice shall be deemed to have been received:
15.7.1 If delivered by hand, on signature of a delivery receipt;
15.7.2 If sent by next working day delivery service, the time recorded by the delivery service. In this clause, business day means a day that is not a public holiday in the place of receipt; and
15.7.3 If sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
15.8 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.9 A notice which has not been served on a Party’s notice address but which has actually been received by such Party shall be deemed for all purposes to have been properly served on such Party.
APPENDIX A: DATA PROCESSING AGREEMENT
1. DATA PROCESSING AGREEMENT
1.1 This Data Processing Agreement (“DPA”) is entered into by and between Customer and Lumina Health and forms part of the Agreement entered into by the Parties. This DPA applies to and takes precedence over the Agreement to the extent of any conflict with regard to the subject matter herein.
In this DPA the following terms have the following meanings:
2.1 “Data Protection Laws” means the General Data Protection Regulation 2016/679 (“GDPR”) (EU), the Protection of Personal Act 4 of 2013 (South Africa), the UK’s retained EU law version of the GDPR as implemented by the Data Protection Act 2018, and other data protection or privacy laws or regulations directly applicable to Lumina Health or Customer.
2.2 "Personal Data" means any information relating to an identified or identifiable individual which information is subject to the Data Protection Laws and which is exchanged between the Parties as a part of the Services provided in the Agreement.
2.3 “Controller”, “Responsible Party”, “Processor”, “Operator”, “Data Subject” and “Processing” have the meanings as defined in the Data Protection Laws.
3. DATA PROTECTION
3.1 Both Parties will comply with all applicable requirements of the Data Protection Laws. This DPA is in addition to, and does not relieve, remove or replace a Party's obligations under the Data Protection Laws.
3.2 The Parties acknowledge that for the purposes of the Data Protection Laws, Customer is the Controller or Responsible Party and Lumina Health is the Processor or Operator. Schedule 1 below sets out the scope, nature and purpose of processing by Lumina Health, the duration of the Processing, the types of Personal Data, and categories of Data Subject.
3.3 Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Lumina Health for the duration and purposes of the Agreement.
3.4 Lumina Health will, with respect to any Personal Data processed in connection with the performance of its obligations under the Agreement:
3.4.1 Process that Personal Data only on the reasonable written instructions of Customer unless Lumina Health is required by applicable laws to otherwise process that Personal Data (in which case Lumina Health will notify Customer, unless the law prohibits providing such notice). Customer hereby instructs Lumina Health to process Personal Data to the extent necessary to perform its obligations under the Agreement. Lumina Health shall immediately inform Customer if, in Lumina Health’s reasonable opinion, an instruction from Customer infringes the Data Protection Laws or other applicable law;
3.4.2 Taking into account industry standard, the costs of implementation, and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for impact on the individuals to whom the Personal Data relates, ensure that it has in place appropriate technical and organisational measures designed to ensure a level of security appropriate to the risk as identified, considering, in particular the risks associated with unauthorised or unlawful processing of Personal Data and accidental loss or destruction of, or damage to, Personal Data;
3.4.3 Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
3.4.4 Notify Customer without undue delay on becoming aware of a Personal Data breach;
3.4.5 Taking into account the nature of the processing and information available to Lumina Health, make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and allow and contribute to audit, including inspections, conducted by Customer or another auditor mandated by Customer, as may be required by the Data Protection Laws, such audits to be held as far as reasonably possible at times, mutually agreed by both Parties, that are convenient to Lumina Health and do not disrupt the day to day business activities of Lumina Health;
3.4.6 Taking into account the nature of the processing and information available to Lumina Health, reasonably assist Customer in responding to a Data Subject request and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, impact assessments and consultations with supervisory authorities or regulators;
3.4.7 Reasonably cooperate with Customer and take such reasonable commercial steps as are requested in writing by Customer to assist it in the investigation, mitigation and remediation of a Personal Data breach; and
3.4.8 At the written direction of Customer, delete or return Personal Data and copies thereof to Customer on termination or expiration of the Agreement unless required by applicable law to store the Personal Data. If Customer fails to provide direction with regard to such Personal Data within a reasonable time, not to exceed sixty (60) days following such termination or expiration, then Lumina Health may retain or destroy such Personal Data without liability with respect thereto or otherwise in compliance with the Data Protection Laws.
3.5 Customer shall reimburse Lumina Health for the cost of any assistance offered to Customer as described in this DPA (e.g., in clause 3.4) beyond what is reasonable taking into account the nature of the Processing.
3.6 Customer consents to Lumina Health appointing sub-processors of Personal Data under the Agreement in order for Lumina Health to perform its obligations under the Agreement as described in the Lumina Health list of sub-processors as set out in Schedule 2 below. Lumina Health confirms that it has entered (or will enter) into written agreements with the sub-processors listed imposing the relevant obligations required by the Data Protection Laws.
3.7 Customer acknowledges that from time to time during the term of the Agreement, Personal Data will be transferred to third countries. Customer gives its express consent to this transfer and Lumina Health agrees to do this transfer with an adequate level of data protection in line with the Data Protection Laws.
3.8 In those circumstances in which the GDPR applies, to facilitate transfer of Personal Data to third countries, the Parties agree to enter into the EU Standard Contractual Clauses:
3.8.1 Customer, as "data exporter", and Lumina Health, as "data importer", hereby enter into, as of the Effective Date, the Standard Contractual Clauses for the transfer of Personal Data to processors established in third countries, Regulation (EU) 2016/679 (the "SCCs") (the text of which is available at https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc/standard-contractual-clauses-international-transfers_en) which are incorporated by this reference and constitute an integral part of this DPA. The Parties are deemed to have accepted and executed the SCCs in their entirety, including the appendices.
3.8.2 In cases where the SCCs apply and there is a conflict between the terms of the DPA and the terms of the SCCs, the terms of the SCCs shall apply.
3.8.3 The information contained in this DPA including its Schedule 1 shall fulfil the requirements of the SCCs Annex 1 (Description of Processing) and Annex 3 (List of Sub-Processors).
3.8.4 The terms of Lumina Health’s security documentation, available from Lumina Health upon request, shall fulfil the requirements of the SCCs Annex 2 (Technical and Organizational Measures).
4. CUSTOMER OBLIGATIONS
Customer agrees that:
4.1 It will comply with its obligations under the Data Protection Laws.
4.2 All of the Personal Data provided by it (or on its behalf) to Lumina Health will be collected and provided in accordance with the Data Protection Laws.
4.3 Lumina Health’s processing of such Personal Data in accordance with the Agreement will not put Lumina Health in breach of the Data Protection Laws.
4.4 If in its reasonable opinion Lumina Health needs to revise this DPA in order to comply with the Data Protection Laws, Customer agrees to enter into a written variation to make the amendments which in Lumina Health’s reasonable opinion are required.
SCHEDULE 1: PROCESSING, PERSONAL DATA AND DATA SUBJECTS
1. Processing by Lumina Health
Processing of Data Subjects’ Personal Data for the purpose of providing online training and education services, diagnosing and managing Patients, and associated reporting and support as described in the Agreement or other applicable documentation.
For the purpose of providing the Services.
1.3 Purpose of processing
Hosting, reporting, customer support or as otherwise described in the Agreement or other applicable documentation.
1.4 Duration of the processing
For the duration required in order to provide the Services unless required by applicable law to store the Personal Data for longer.
2. Types of personal data
Data Subjects’ Personal Data User uploaded to the Platform including:
Users: name, email address, phone number, physical address, practitioner code, medical practice registration number and financial data (bank account and/or payment card details).
Patients: name, email address, phone number and health information.
3. Categories of data subject
Users: Any individual accessing and/or using the Services through Customer's subscription (Users).
Patients: Patients of Customer that receive Customer’s healthcare services and that may be given access to the Patient App by Customer via the Platform.
Hosting Provider (Patients)
Ireland and/or Germany
Customer Relationship Management (CRM)
Hosting Provider (Users and Content)
Lumina Health SA (Pty) Ltd
Support services (customer, technical, finance and marketing)