Terms for medical professionals

1. Who these terms apply to

These terms apply to medical professionals who use a professional account ("medical-professional account") at Pacely to follow along with their clients. Pacely is a product of Onn Software B.V.

In addition to these terms, Pacely's ordinary terms of use and privacy notice also apply. In the event of a conflict, for the use of a medical-professional account, these terms take precedence.

2. Our roles under the GDPR

Pacely and you are each an independent controller. Neither processes personal data on the instruction of the other.

• Pacely is the controller for the data that a client records in the Pacely app. Every user signs up with Pacely themselves, agrees to the terms of use and the privacy notice themselves, and is thereby a direct customer of Pacely. Even when a medical professional chooses to bear the subscription costs of their client, the sign-up, the consent and the control over the data remain directly with the client themselves; that is a commercial arrangement between you and your client, not a data-processing arrangement between you and Pacely. Pacely itself determines the purpose and the means of that processing, even before a medical professional is involved with that client.
• You are the controller for the care you provide to your client, and for everything you record in your own file or systems on the basis of your access.

Why no data processing agreement belongs here

It happens that a medical professional asks for a data processing agreement. One does not belong here, and this is why.

A data processing agreement (article 28 GDPR) governs solely the relationship between a controller and a processor: a party that processes data only on the instruction and order of that controller. That relationship does not exist here in either direction.

• Pacely is not your processor. Pacely does not process the client's data on your instruction. The client is a direct customer of Pacely, and Pacely was already processing that data for its own purpose before you were linked. Taking on a client's subscription costs changes nothing about this.
• You are not Pacely's processor. You view data for your own treatment purpose and on the basis of your own legal ground, not on Pacely's instruction.

There is therefore no processor, and thus no data processing agreement, in any direction. Pacely and you are both controllers. Linking a client is a disclosure from one controller to the other, for which the client gives consent. The appropriate instrument for that is an arrangement between controllers, and that is exactly what these terms are.

If you process data you view via Pacely further in your own systems, you are responsible for that yourself, separately from Pacely.

3. The medical-professional account

• A medical-professional account does not come about by itself. You get a one-time invitation link from Pacely. With it you create an ordinary account (or log in to your existing account), and then accept these terms. Only after that acceptance is your account upgraded to a medical-professional account.
• You declare that you are an authorised medical professional. If you are BIG-registered (the Dutch register of healthcare professionals), you keep that registration valid for as long as you use the account. If your authorisation or registration lapses, you report that to us via mail@pacely.nl.
• Your account is personal. It is linked to you as an individual medical professional, not to a practice or organisation. You do not share your login details and let no one else work under your account. If several medical professionals within one practice work with Pacely, each has their own account.
• Access to the professional portal requires two-factor authentication (MFA). You keep your second factor (for example an authenticator app) current and do not share it.
• You report misuse or loss of access as quickly as possible to mail@pacely.nl.

4. Access to client data

• You only get access to a client's data after that client has given consent for it within Pacely. Pacely records that consent as an active link between you and the client, and your access works solely for as long as that link is active. See also article 6 of the privacy notice ("Who at Pacely can see your data").
• You only link clients with whom you actually have a treatment relationship. You do not use a link for someone who is not your client.
• Within an active link you can view everything the client has recorded in Pacely and what Pacely has derived for the client on that basis, pacing data, moment check-ins, day summaries, observations, baselines, notes and settings. Where the client has allowed it, you can in addition add notes or adjust a setting for the client.
• Viewing and changing always go through the controlled server paths of the professional portal; you have no direct database access. Every action, read actions and changes, is recorded in the audit log (see article 6) and is visible to the client in their own overview.
• You use the access solely within the Pacely environment. You do not export client data from Pacely and make no copies of Pacely data outside the platform. The data you view belongs to the client, not to you. Recording in your own file what you have observed about your client and which considerations you weighed, possibly partly on the basis of what you saw in Pacely, does not fall under this; that is your own file and not a copy of Pacely data, and you are the controller for it yourself (see article 2).
• Research extension (only with an ongoing research agreement). If you work from a research institution with which Pacely has concluded a data transfer agreement (`research-data-sharing-agreement`) for a specific study, your professional account can receive additional rights for the participants in that study, such as an on-demand export button for the data of an individual participant. That extension applies solely to the clients who themselves took part in that specific study under the additional terms for external research, only for the data and the actions agreed in that agreement, and only for the duration of that participation. If a participant withdraws their consent, or the agreement ends, those rights lapse immediately. For all other links, the export prohibition of this article continues to apply in full.
• The client can withdraw the access at any time, and the access lapses automatically if the client deletes their account. You accept that your access may end without prior notice as a result.

5. How you use the data

• You use the access solely for the care of the client concerned.
• You are bound by your own professional confidentiality and treat everything you view accordingly.
• You do not share the data with third parties, unless you have your own legal ground and, where needed, consent from the client for it.
• Pacely shows observations to support your professional judgement. No automated decisions are made within the meaning of article 22 GDPR; the considerations remain with you and your client.

6. What Pacely does

• Pacely provides the platform, stores data within the European Union (see article 8 of the privacy notice) and records every view and change in the professional portal (who, when, on which client, with which action). We keep that log for 24 months and it is in line with the audit recording described in article 6 of the privacy notice.
• Pacely can suspend or terminate a medical-professional account in the event of a breach of these terms, when the authorisation or BIG registration of the medical professional lapses, or when payment for the account is not received (see article 7).
• Pacely can change these terms. For substantive changes we inform you at least 30 days in advance by email or in the portal, and we ask for your agreement again where needed. If you do not agree with a change, you can terminate your account before the effective date (see article 9).

7. Rate, payment and cancellation

• The medical-professional account is a paid service. The current rate and what is included in the standard package can be found at pacely.nl. By accepting these terms you confirm the rate shown at that moment.
• Payment is made monthly in advance, by invoice sent by email. Unless we agree otherwise in writing, we apply a payment term of 14 days after the invoice date.
• The account renews automatically per month. You can cancel at any time by email to mail@pacely.nl; the cancellation takes effect at the end of the current month and we do not refund pro-rata amounts for the month already running.
• If payment is not received despite reminders, we may pause access to the professional portal until payment comes through after all, and in the event of continued non-payment terminate the account in accordance with article 6.

8. Liability and indemnification

Pacely supports your work, but does not replace your professional judgement. You remain responsible yourself for the care you provide, for the decisions you take in response to the access, and for what you record in your own file on the basis of that access. Observations, charts and signals in Pacely are never an instruction or medical advice; weighing, adjusting or ignoring them is your own choice.

Pacely is not a medical device within the meaning of the MDR/CE regulations (see also article 2 of the terms of use).

Pacely's liability. In the event that Pacely is nonetheless liable for damage that is the direct result of an error on our part, the following applies, and this limit is final:

• Our total liability, regardless of the legal ground and added together across all instances of damage during the entire term of your medical-professional account, is limited to the amount you paid to Onn Software B.V. for that account in the twelve months prior to the damage-causing event. You can in no case recover more than that from Pacely, regardless of how the damage develops or what form it takes. If you paid nothing during that period, the upper limit is zero.
• We are not liable for indirect damage, consequential damage, lost revenue, reputational damage or loss of data, to the extent the law allows.

These limitations do not apply in the case of intent or deliberate recklessness on the part of Onn Software B.V., nor for damage for which the law does not allow liability to be limited.

Indemnification by you. You indemnify Onn Software B.V. against claims from your clients or other third parties to the extent they arise from:

• your own care choices, diagnosis, treatment content or advice to the client;
• the way you make use of what you view via Pacely, including what you take from it into your own file or care process;
• your breach of these terms, your professional confidentiality, your professional rules or an obligation towards your client.

This indemnification covers reasonable costs of defence and any awarded claims. It does not apply to the extent the claim is the direct result of an error of Onn Software B.V. itself and falls within the framework of the liability above.

9. Termination

• You can have your medical-professional account terminated at any time by contacting mail@pacely.nl. The termination takes effect at the end of the current invoice month (see article 7).
• Pacely can terminate your medical-professional account on the grounds mentioned in article 6. In the case of serious misuse or a legal obligation, we may intervene immediately.
• On termination, your links with clients lapse. Existing view and change logs are kept according to the retention periods in the privacy notice (24 months, see article 6).

10. Final provisions

If a part of these terms is not legally valid, the remaining parts simply continue to apply. We replace the invalid part with an arrangement that comes as close as possible to the original intention.

Your rights and obligations under these terms are not transferable without our written permission.

These terms are governed by Dutch law. Disputes that we do not resolve together, we submit to the Zeeland-West-Brabant District Court.