Data Processing Agreement
This Data Processing Agreement, “DPA,” is entered into between Lumea Digital and our partners and affiliates (“Providers,” “us,” “we,“ or “our”), and you (the Client) and the user of the BxLink, Viewer+, and other Lumea products and associated software and services “Services”, and is incorporated into and governed by the terms found in the Terms Of Service.
1. Definitions
Any capitalized term not defined in this DPA shall have the meaning given to it in the Terms Of Service.
Terms Of Service means the Agreement between us and the Client for the provision of the Services found (found here).
Controller means the Client;
Data Subject shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as amended from time to time or replaced by subsequent legislation);
DPA shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as amended from time to time or replaced by subsequent legislation);
Personal Data shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as amended from time to time or replaced by subsequent legislation);
Processor means us;
Security Documentation means the security documents located at the Processor’s offices as amended from time to time or as otherwise made available by the Processor to the Controller;
Standard Contractual Clauses means the EU model clauses for Personal Data transfer from controllers to processors c2010-593 – Decision 2010/87EU;
Subsidiary means any entity that directly or indirectly controls is controlled by or is under the common control of a party. “Control,“ for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party;
Sub Processor means any person or entity engaged by us (including a Subsidiary) to process Personal Data in the provision of the Services to the Client.
2. Purpose
The Processor has agreed to provide the Services to the Controller in accordance with the terms of the Terms Of Service. In providing the Services, the Processor shall process Client Data on behalf of the Controller. Client Data may include Personal Data. The Processor will process and protect such Personal Data in accordance with the terms of this DPA.
3. Scope
In providing the Services to the Controller pursuant to the terms of the Terms Of Service, the Processor shall process Personal Data only to the extent necessary to provide the Services in accordance with both the terms of the Terms Of Service and the Controller’s instructions documented in the Terms Of Service and this DPA.
4. Processor Obligations
The Processor may collect, process, or use Personal Data only within the scope of this DPA.
The Processor confirms that it shall process Personal Data on behalf of the Controller and shall take steps to ensure that any natural person acting under the authority of the Processor who has access to Personal Data does not process the Personal Data except on instructions from the Controller.
The Processor shall promptly inform the Controller if, in the Processor’s opinion, any of the instructions regarding the processing of Personal Data provided by the Controller breach any applicable data protection laws.
The Processor shall ensure that all employees, agents, officers, and contractors involved in the handling of Personal Data: (i) are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential; (ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this DPA.
The Processor shall implement appropriate technical and organizational procedures to protect Personal Data, 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 Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including as appropriate: (i) the pseudonymization and encryption of Personal Data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing. In accessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored, or otherwise processed.
The technical and organizational measures detailed in the Security Documentation shall be at all times adhered to as a minimum security standard. The Controller accepts and agrees that the technical and organizational measures are subject to development and review and that the Processor may use alternative suitable measures to those detailed in the attachments to this DPA, provided that such updates and modifications do not result in the degradation of the overall security of the Services.
Where Personal Data relating to an EU Data Subject is transferred outside of the EEA, it shall be processed only by entities which: (i) are located in a third country or territory recognized by the EU Commission to have an adequate level of protection; or (ii) have entered into Standard Contractual Clauses with the Processor; or (iii) have other legally recognized appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller by having in place appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights and the Controller’s compliance with the Controller’s data protection obligations in respect of the processing of Personal Data.
5. Controller Obligations
The Controller represents and warrants that it shall comply with the terms of the Terms Of Service, this DPA, and all applicable data protection laws.
The Controller represents and warrants that it has obtained any and all necessary permissions and authorizations necessaryto permit the Processor, its Subsidiaries, and Sub-Processors to execute their rights or perform their obligations under this DPA.
The Controller is responsible for compliance with all applicable data protection legislation, including requirements with regard to the transfer of Personal Data under this DPA and the Terms Of Service.
All Subsidiaries of the Controller who use the Services shall comply with the obligations of the Controller set out in this DPA.
The Controller has their own obligations to implement their own appropriate technical and organizational procedures to protect Personal Data, taking into account 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 Controller shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymization and encryption of Personal Data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing. In accessing the appropriate level of security account shall be taken particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored, or otherwise processed.
The Controller shall take steps to ensure that any natural person acting under the authority of the Controller who has access to Personal Data does not process the Personal Data except on instructions from the Controller.
The Controller may require correction, deletion, blocking, and/or making available the Personal Data during or after termination of the Agreement. The Processor will process the request to the extent it is lawful and will reasonably fulfill such request in accordance with its standard operational procedures to the extent possible.
The Controller acknowledges and agrees that some instructions from the Controller, including destruction or return of data from the Processor, may result in additional fees. In such case, the Processor will notify the Controller of such fees in advance unless otherwise agreed.
6. Sub-Processors
The Controller acknowledges and agrees that: (i) Subsidiaries of the Processor may be used as Sub-processors and (ii) the Processor and its Subsidiaries, respectively, may engage Sub-processors in connection with the provision of the Services.
All Sub-processors who process Personal Data in the provision of the Services to the Controller shall comply with the obligations of the Processor similar to those set out in this DPA.
Where Sub-processors are located outside of the EEA, the Processor confirms that such Sub-processors: (i) are located in a third country or territory recognized by the EU Commission to have an adequate level of protection; or (ii) have entered into Standard Contractual Clauses with the Processor; or (iii) have other legally recognized appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
7. Liability
The limitations on liability set out in the Terms Of Service apply to all claims made pursuant to any breach of the terms of this DPA.
The parties agree that the Processor shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of the Processor subject to any limitations on liability set out in the terms of the Terms Of Service.
The parties agree that the Controller shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Subsidiaries as if such acts, omissions, or negligence had been committed by the Controller itself.
The Controller shall not be entitled to recover more than once in respect of the same claim.
8. Audit
The Processor shall make available to the Controller all information reasonably necessary to demonstrate compliance with its processing obligations and allow for and contribute to audits and inspections.
Any audit conducted under this DPA shall consist of an examination of the most recent reports, certificates, and/or extracts no more than once per calendar year. In the event that provision of the same is not deemed sufficient in the reasonable opinion of the Controller, the Controller may at its own expense conduct a more extensive audit which will be: (i) limited in scope to matters specific to the Controller and agreed in advance with the Processor; (ii) carried out during Processor normal business hours and upon reasonable notice which shall be not less than four weeks unless an identifiable material issue has arisen; and (iii) conducted in a way which does not interfere with the Processor’s day-to-day business.The Processor may charge a fee (based on its reasonable time and costs) for assisting with any audit. The Processor will provide the Controller with further details of any applicable fee and the basis of its calculation in advance of any such audit.
This clause shall not modify or limit the rights of audit of the Controller; instead, it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.
9. Notification of Data Breach
The Processor shall notify the Controller without undue delay after becoming aware of (and in any event within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access to any Personal Data (“Data Breach”).
The Processor will take all commercially reasonable measures to secure the Personal Data, to limit the effects of any Data Breach, and to assist the Controller in meeting the Controller’s obligations under applicable law.
The Processor’s notification of, or response to, a Data Breach under this Section 10 will not be construed as an acknowledgment by the Processor of any fault or liability with respect to the Data Breach.
The Processor will not assess the content of the Controller’s data in order to identify information subject to any specific Controller data breach. Controller is solely responsible for complying with data breach notification laws applicable to the Controller and fulfilling any third-party notification obligations related to any Data Breach(es).
10. Compliance, Cooperation, and Response
In the event that the Processor receives a request from a Data Subject in relation to Personal Data, the Processor will refer the Data Subject to the Controller unless otherwise prohibited by law. The Controller shall reimburse the Processor for all costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request or assisting the Controller in complying with its duties. In the event that the Processor is legally required to respond to the Data Subject, the Controller will fully cooperate with the Processor as applicable.
The Processor will notify the Controller promptly of any request or complaint regarding the processing of Personal Data which adversely impacts the Controller unless such notification is not permitted under applicable law or a relevant court order.
The Processor may make copies of and/or retain Personal Data in order to comply with its legal or regulatory requirements, including, but not limited to, retention requirements.
The parties acknowledge that it is the duty of the Controller to notify the Processor, within a reasonable time, of any changes to applicable data protection laws, codes, or regulations that may affect the contractual duties of the Processor. The Processor shall respond within a reasonable timeframe with respect to any changes that need to be made to the terms of this DPA or to the technical and organizational measures to maintain compliance. If the parties agree that amendments are required, but the Processor is unable to accommodate the necessary changes, the Controller may terminate the part or parts of the Services which give rise to the non-compliance. To the extent that other parts of the Services provided are not affected by such changes, the provision of those Services shall remain unaffected.
The Controller and the Processor and, where applicable, their representatives shall cooperate, on request, with a supervisory data protection authority in the performance of their respective obligations under this DPA.
The parties agree that the Processor will be entitled to charge the Controller additional fees to reimburse the Processor for its staff time, costs, and expenses in assisting the Controller when the Controller requests the Processor to provide assistance pursuant to this DPA. In such cases, the Processor will notify the Controller of its fees for providing assistance in advance.
11. Term and Termination
The term of this DPA shall coincide with the commencement of the Agreement, and this DPA shall terminate automatically together with the termination or expiry of the Agreement.
12. General
This DPA sets out the parties’ entire understanding of the subject matter herein.
Should a provision of this DPA be invalid or become invalid, then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed upon and comes closest to what the parties intended commercially. It shall replace the invalid provision. The same shall apply to any omissions.
Data Processing Agreement – Schedule 1
Overview of data processing activities to be performed by the Processor
1. Controller
The Controller transfers Personal Data identified in sections 3, 4 , and 5 below, as it relates to the processing operations identified in section 6 below.
The Controller is the Client.
2. Processor
The Processor received data identified in sections 3, 4 , and 5 below, as it relates to the processing operations identified in section 6 below.
The Processor is:
Lumea Digital (a registered DBA of Leavitt Medical) is a private limited company registered in Utah, United States, with its registered offices at 2889 Ashton Blvd #300, Lehi, UT 84043, USA.
3. Data Subjects
The Personal Data transferred includes but is not limited to the following categories of Data Subjects:
· Individuals about whom data is uploaded to the Service by (or at the direction of) the Controller or by Users, Subsidiaries, and other participants whom the Controller has granted the right to access the Service in accordance with the provisions of the Agreement.
4. Categories of Data
The Personal Data transferred includes but is not limited to the following categories of data:
· Data relating to individuals uploaded to the Service by (or at the direction of) the Controller or by Users, Subsidiaries, and other participants whom the Controller has granted the right to access the Service in accordance with the provisions of the Agreements
5. Special Categories of Data
Personal Data transferred includes but is not limited to the following special categories of data:
· No sensitive or special categories of data are permitted to be transferred and shall not be contained in the content of attachments to emails.
6. Processing operations
The Personal Data transferred will be subject to the following basic processing activities:
· Personal Data will be processed to the extent necessary to provide the Service in accordance with both the terms of the Agreement and the Controller’s instructions. The Processor processes Personal Data only on behalf of the Controller. Processing operations include but are not limited to the provision of the Service – this operation relates to all aspects of the processing of personal data.
· Technical support, issue diagnosis, and error correction to ensure the efficient and proper running of the systems and to identify, analyze, and resolve technical issues both generally in the provision of the Service and specifically in answer to a Controller query. This operation may relate to all aspects of personal data processing but will be limited to metadata where possible.
· URL scanning for the purposes of the provision of targeted threat protection and similar services, which may be provided under the Terms Of Service. This operation relates to attachments and links in emails and will relate to any Personal Data within those attachments or links, which could include all categories of Personal Data.
Dated: 07/05/2024
