PROVISIONS OF THE AGREEMENT
- Subject of the agreement. This agreement (hereinafter the “Agreement”) regulates the use of the website mybingli.com (hereinafter the “Website”). Through this website you, as Physician (hereinafter the “Physician) can collect and process data regarding your patient (hereinafter the ‘Patient”). You, as Physician, remain responsible for the processing of data of your patient, but the website itself is operated by Bingli, which acts as a processor. This is further explained in article 2 of the Agreement.
The physician acknowledges and accepts that Bingli is no medical care provider: The service provided by Bingli can therefore not be equated with the services provided by medical care providers.
The Service does not replace any diagnostic or medical treatment, such as performed by physicians, nurses or other medical care providers, nor will or can it be equated with this. The Physician himself, in consultation with his patient, should make the decisions regarding his diagnosis and treatment. The Physician acknowledges that Bingli does not bear the liability of a medical care provider and is aware that Bingli is not insured against such liability.
- Responsibility of the Physician and permission to process the personal health data of the Patient.
2.1. Bingli offers the Physician and the Patient a Service (hereinafter the “Service”) that is related to the Patient’s personal data, in particular his personal health data (hereinafter jointly the “Personal Data”). Bingli decides which working methods and techniques will be used for the provision of this Service, but it always provides the Service on behalf of the Physician in accordance with this Agreement and, insofar as required, with the European Regulation 2016/679 from 27 April 2016 (General Data Protection Regulation or GDPR) and all other applicable European and national legislation regarding data protection, whereby the Physician acts as the client and controller of the Personal Data of the Patient. The Physician explicitly instructs Bingli to process the Patient’s Personal Data this way. The different obligations of the Physician as controller and of Bingli as processor will be further explained in the memorandum “GDPR compliance of the Bingli consultation app” included in this Agreement as appendix 1.
2.2. In addition (outside the scope of the Service), the Physician also permits Bingli to process Personal Data of the Patient and of the Physician for Bingli’s own benefit, as follows:
- To use Personal Data after pseudonymisation (together with the feedback of the physician) to improve the service of Bingli;
- To process Personal Data of Physicians to offer the Service, including providing a login on the Website, invoicing and informing the Physician about updates; and
- To provide Personal Data of Patients that is adequately anonymous to third parties for scientific purposes.
2.3. The terms “personal data”, “processing” or “process”, “controller”, “processor” and “personal data breach” used in this Agreement have the same meaning as in the General Data Protection Regulation.
- Duration. The Agreement runs till it is terminated by one of the parties. In case the Agreement is violated, the non-violating party may terminate the Agreement immediately upon notice.
- The Service of Bingli for the benefit of the Physician has the following purposes, and the Physician instructs Bingli to process the Personal Data for the Service for these reasons. Bingli only processes Personal Data on behalf of the Physician for the following purposes:
- Management, in particular retrieval, storage, modification and transfer of the Personal Data of the Patient;
- The improvement of the usability of the Personal Data of the Patient;
- The simplification of participation in scientific research, if the Patient wishes so;
- The evaluation of the health care provided to the Patient, with the aim to improve this; and
- The identification of potential risks of the Patient.
If Bingli has a legal obligation to process Personal Data, neither the Physician nor the Patient can object to this, but Bingli will inform the Physician in advance of this legal obligation, unless this legislation forbids this notification for serious reasons of public interest.
- Confidential treatment
5.1. Bingli acknowledges that the Personal Data is strictly confidential. Bingli will not disclose the Personal Data in the context of the Service to a third party, except in the following cases and circumstances:
- the disclosure of Personal Data of the Patient to third parties is done with the informed consent of the Patient and/or when it is necessary for a physician or hospital in the context of the treatment of the Patient and/or in the context of legal permissions or obligations and/or by court order and/or for the initiation, exercise or substantiation of a legal claim;
- the disclosure of Personal Data of the Physician to third parties is done with the informed consent of the Physician and/or when it is necessary for the execution of this Agreement and/or for own management and administration of Bingli and/or for a physician or hospital in the context of the treatment of the Patient and/or in the context of legal permissions or obligations and/or by court order and/or for the initiation, exercise or substantiation of a legal claim.
People who can have access to the Personal Data in the context of the Service, are:
- Bingli employees and contractors responsible for collecting, processing, managing and reviewing the Personal Data;
- Bingli employees and contractors responsible for quality management and security;
- Bingli responsible people for the control of Bingli employees and contractors;
- Any party for whom the Physician or the Patient gives Bingli the order to release; and
- Any other person who has authorised access due to applicable legislation.
- Protection of Personal Data. Bingli takes appropriate technical and organisational measures to protect the Personal Data from loss or any type of unlawful processing or access. These measures guarantee an appropriate level of security, considering the state of technique and the associated costs, the nature, scope, context and purposes of the processing and the likelihood and severity of the risks. This concerns in particular the following measures:
- Physical access restriction. Bingli ensures that the places where the Personal Data is processed, are not accessible to unauthorised people and takes the necessary organisational measures thereto.
- Functional access restriction. Bingli restricts the access to the Personal Data to those staff members and those (staff members of) contractors who need the data in order to execute the tasks that Bingli assigns to them in accordance with this Agreement (as stipulated in article 2 and 4 of this Agreement).
- Bingli makes the people who have access to the Personal Data in the context of the Service aware of the interest of their confidential treatment, and makes them – when applicable – sign a confidentiality statement that will be added to the agreement concluded with them. Bingli informs the people who have access to the Personal Data in the context of the Service of the applicable legal provisions.
- Notification obligation. Bingli will make the legally required notifications to the Patient when collecting the Personal Data and will request the Patient’s consent for the processing of his Personal Data.
- Support obligation. Bingli will, insofar as it concerns the processing of Personal Data that Bingli performs on behalf of the Physician and considering the nature of this processing and the information that Bingli has, give support to the Physician in complying with:
- the own obligations of the Physician to take appropriate technical and organisational measures, to perform a data protection impact assessment where appropriate and to register and where appropriate report Personal Data breaches to the Data Protection Authority and the data subject. With regard to this last obligation, Bingli will immediately inform the Physician about the Personal Data breach as soon as Bingli has become aware of this; and
- the own obligations of the Physician to respond to Patient’s requests to exercise their rights under chapter III of the General Data Protection Regulation. Bingli reserves the right to compensation by the Physician for the time and resources that Bingli must devote on this support.
- Sub-processors. The Physician accepts that Bingli may engage third-party contractors (hereinafter the “Sub-processors”) for the processing of the Personal Data on behalf of the Physician in the context of the Service. At the request of the Physician, Bingli will provide a list of its Sub-processors to the Physician.
Before adding a new Sub-processor or replacing an existing Sub-processor, Bingli will inform the Physician about this in writing and will give the Physician 15 days to object to or to agree with the new Sub-processor. If the Physician has not responded after this 15-day period has expired, Bingli may engage the new Sub-processor. If the Physician objects to the new Sub-processor within the period of 15 days, Bingli reserves the right to suggest an adjustment of the Service, or to completely or partially terminate the Agreement without any notice period.
If Bingli engages a Sub-processor, Bingli will impose the same obligations regarding data protection as those stipulated in this Agreement on this Sub-processor, by agreement or another legal action.
- Storage of data. The Physician accepts that Bingli will store the Patient’s Personal Data in electronic archives and/or databases, set up and managed by Bingli, in the form in which this Personal Data is received or in any other derivative form that Bingli uses in the context of the Service. Bingli can appeal to Sub-processors for the storage of personal data, who in principle are established in the European Economic Area. In case Bingli appeals to service providers established outside the European Economic Area, it will make the necessary arrangements to realise an equivalent level of protection of Personal Data in accordance with the articles 44 up to 49 of the General Data Protection Regulation.
Bingli will not store the Personal Data any longer than is necessary to provide the Service. At the request of the Patient or after the Service, Bingli will remove the Personal Data, unless the storage of Personal Data is mandatory. At the request of the Physician or the Patient, Bingli will return the Personal Data to the Physician respectively the Patient before removing the Personal Data from its own files.
This restriction on the storage period and obligation to remove and return the Personal Data by Bingli in the context of the Service, may however not prevent Bingli from (continuing) to process the Personal Data of the Patient and the Physician after the Service, for its own benefit outside the context of the Service, conform article 2.2 of this Agreement. So any Data that Bingli still requires for its own processing, will not be removed by Bingli, and this for as long as it requires this for its own processing.
- Secure communication. The Physician accepts that the communication of Personal Data to Bingli is done electronically, and that any form of communication entails a risk of interception, incorrect delivery or loss. Bingli is not liable for communication errors that are not attributable to Bingli.
- Checking by the controller. The Physician has the right to check the compliance with this Agreement. For this purpose, Bingli will provide the Physician with all the relevant information, at the request of the latter.
The Physician also has the right, at his own expense, to check the processing of Personal Data that Bingli performs on behalf of the Physician, through an audit by the Physician or a third party authorised by the Physician on the condition that this audit will not disturb the business operations of Bingli and that the audit is announced at least 10 working days in advance and the necessary practical agreements will be made between parties for this audit. Bingli reserves a right to compensation by the Physician for the time and resources that Bingli must devote to this audit.
If appropriate, Bingli may ask the Physician to sign a confidentiality statement.
- Intellectual Property. All intellectual property rights vested in the Service, in particular patents, copyright, trademarks, rights regarding the design and trade secrets that are directly related to the Service, rest exclusively with Bingli. The Physician will acknowledge these intellectual property rights, will honour these and will not engage in activities that may affect or endanger these intellectual property rights.
- Restriction of liability. The liability of Bingli with respect to the Physician in the context of this Agreement is the maximum amount that will be paid by the insurance of Bingli in case of damage, even if Bingli was informed in advance of the possibility of this liability. Under no circumstances will Bingli be liable for any exceptional, indirect, incidental or consequential damage related to this Agreement, except when this damage is the result of gross negligence by Bingli.
- Any notification, question, receipt confirmation or other messages that must or may be made by one of the parties based on the conditions of this Agreement or otherwise, must, unless stated otherwise in this Agreement, be made in writing and send by regular mail or registered mail with receipt confirmation, to the addresses referred to in this Agreement.
- Relationship between the parties. The relationship between parties is one of individual contractors. No party can commit the other party, explicitly or implicitly, through a unilateral promise, guarantee or representation of the other party. Under no circumstances can the relationship between Parties be considered as a partnership, joint venture or principal and agent relationship.
- Belgian Law. This Agreement is concluded under Belgian law and the parties agree that this Agreement and all related disputes will be interpreted under Belgian law.
- Dispute settlement
- The parties agree to make all reasonable effort for an amicable settlement of any disputes related to this Agreement
- In case of any dispute, difference, controversy or complaint in connection with this Agreement, parties will first try to settle this mutually and amicably with all reasonable effort.
- If parties cannot come to an amicable agreement in accordance with article 16b, the courts of Antwerp will be exclusively authorised to settle any dispute in connection with the existence, the interpretation and/or the execution of this Agreement.
- No adjustment or change to this Agreement will be valid unless in writing and signed by the representatives of both parties who are authorised thereto.
- The Physician gives consent to Bingli to activate the link to Bingli in his appointment system.