THIS AGREEMENT is made on September 30th 2014, as Version 1.0.
Update Versions / Dates : [Version 1.5 / 7h May 2018]
PLEASE READ CAREFULLY BEFORE USING IBDoc®
This end-user licence agreement (EULA) is a legal agreement between you (End-user or you), a professional healthcare provider (PHP ), and BÜHLMANN Laboratories AG, Baselstr. 55, 4124 Schönenbuch / Switzerland (BÜHLMANN, us or we) for the use of the following Products:
We licence the use of the Products to you on the basis of this EULA. We do not sell IBDoc® or parts thereof or any Documents to you. We remain the owners of the Products at all times.
BÜHLMANN REFUSES ALL RESPONSIBILITIES, WARRANTIES OR LIABILITIES WHATSOEVER IF THE DEVICE USED BY THE PATIENT TO TRANSFER HIS OR HER TEST RESULTS HAS NOT BEEN RELEASED AND LICENCED WITH ITS ORIGINAL MANUFACTURER.
You may print a copy of this EULA for future reference.
IT IS AGREED AS FOLLOWS:
1.1 The terms of this EULA apply to the use of IBDoc ® and the corresponding Documents and any of the services accessible through IBDoc® (Services), including any updates or supplements to IBDoc® or any Service, unless they come with separate terms, in which case those terms apply. If any open-source software is included in the IBDoc ® Software, the terms of an open-source licence may override some of the terms of this EULA.
1.2 We may change these terms at any time by notifying you of a change when you next start IBDoc® and log in. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Services.
1.3 From time to time we may issue updates on IBDoc ®. Depending on the update, you may not be able to use the Services until you have downloaded or streamed the latest version of IB Doc® and accepted any new terms.
1.4 By using IBDoc® or any Service, you consent to us (or our technology provider) collecting and using technical information about your computer or other digital devices (Devices) and related software, hardware and peripherals for Services that are internet-based or wireless to improve our products and to provide any Services to you.
1.5 The use of the Product is associated with regular transfers of Patient Data over the Internet. You agree with the following safety features applied by us to Patient Data: Patient Data is transferred as encrypted data by a 256 bit AES key using the keyczar cryptographic toolkit (https://github.com/google/keyczar). Such encrypted Patient Data is stored in an encrypted data storage system located within the European Union (EU) and/or Canada. To minimise data lost, Patient Data is stored on an application server and a Back-up Server. All servers use between with each other encrypted data transfers and each server is an encrypted data storage. The servers are located in geographically separated data centres, but all being located within the EU and/or Canada.
1.6 As PHP, you take on the role as central data controller of Patient Data, as BÜHLMANN has no possibility to access Patient Data. In its role as controller, the PHP expressly accepts the following obligations, and acknowledges the following limitations:
1.6.1 You guarantee to obey all applicable laws, rules and regulations concerning data protection regarding Patient Data at all time, including but not limited to the Regulation (EU) 2016/679 of 27 April 2016 (General Data Protection Regulation; “GDPR”).
1.6.2 You are responsible that the Patient Data you store and save on your IT-system is accurate.
1.6.3 You are responsible to inform your patients correctly about which Patient Data is stored and under which conditions.
1.6.5 You agree that your patients have at all time the possibility to ask for the deletion or the amendment of their Patient Data and that you comply with such requests.
1.6.6 You acknowledge and agree that we are only responsible for the accuracy of the technical parameters, but not for the accuracy of the stored Patent Data and other data provided by you, your affiliates or your employees.
1.6.7 Prior to any transmission of Patient Data, a password-protected login from both you and the patient is required. It is, however, your and the patient's responsibility to choose a strong password and keep the passwords confidential at all time.
1.6.8 Patient Data belongs at all time to you and/or to the patient as the case may be. Patient Data is only accessible by you and the patient.
1.6.9 We only have access to aggregated and pseudonymised Patient Data meaning that the personal data can no longer be attributed to a specific data subject without the use of additional information. For supporting reasons, we may see and use your patient's email address. Other personal data of your patients is not accessible by us unless your patients interact with us in way according to condition 1.7 below.
1.6.10 We do not alter, amend or delete any Patient Data without the express consent of you and the patient.
1.6.11 Neither our distributors nor other any third party collaborators have access to Patient Data, except as described in clause 1.6.9.
1.8 By using IBDoc® or any Service, you acknowledge to us that the Products may only properly function if there have not been any modifications or alterations to the Products whatsoever.
1.9 Any measurement made with, or displayed by IBDoc ® is intended as an aid to detection and assessment only. ANY DIAGNOSIS OR TREATMENT DECISION SHOULD BE ENTIRELY THE RESPONSIBILITY OF A TRAINED HEALTH CARE PROFESSIONAL (HCP). Any such decision should integrate all of the information available from a variety of sources including clinical examinations when forming an opinion.
1.10 IBDoc® or any Service may contain links to other independent third-party websites (Third-party Sites). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
1.11 Any words following the terms including,include, especially, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2. Grant and scope of licence
2.2 You may download or stream a copy of the IBDoc® Software and the Documents, if applicable, onto your Devices and use and display the Products on the Devices for designated purposes only, i.e. the receipt and the analysis of data collected by your patients and transmitted via the App.
3. Licence restrictions
Except as expressly set out in this EULA or as permitted by any local law, you agree:
3.1 not to copy the Products, especially the IBDoc ® Software, except where such copying is incidental to the normal use of the Products, or where it is necessary for the purpose of back-up or operational security;
3.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Products, especially the IBDoc® Software;
3.3 not to make alterations to, or modifications of, the whole or any part of the Products, especially the IBDoc® Software, or permit the Products, especially the IBDoc® Software, or any part of it to be combined with, or become incorporated in, any other programs;
3.4 not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Products, especially the IB Doc® Software, or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the IB Doc® Software with another software program, and provided that the information obtained by you during such activities:
3.4.1 is used only for the purpose of achieving inter-operability of the IB Doc® Software with another software program;
3.4.2 is not disclosed or communicated without our prior written consent to any third party; and
3.4.3 is not used to create any software that is substantially similar to the Products, especially the IBDoc® Software;
3.5 to keep all copies of the Products, especially the IBDoc ® Software, secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Products, especially the IBDoc® Software;
3.6 to include our copyright notice on all entire and partial copies you make of the Products, especially the IBDoc® Software, on any medium;
3.7 not to provide or otherwise make available the Products, especially the IBDoc® Software, in whole or in part (including object and source code), in any form to any person without prior our written consent; and
3.8 to comply with all technology control or export laws and regulations that apply to the technology used or supported by IBDoc ® or any Service (Technology),
together Licence Restrictions.
4. Acceptable use restrictions
4.1 not use IBDoc® or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into IB Doc®, any Service or any operating system;
4.2 not infringe our intellectual property rights or those of any third party in relation to your use of IBDoc® or any Service, including the submission of any material (to the extent that such use is not licensed by this EULA);
4.3 not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of IBDoc® or any Service;
4.4 not use IBDoc® or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
4.5 not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
together Acceptable Use Restrictions
5. Intellectual property rights
5.1 You acknowledge and agree that all intellectual property rights in IB Doc®, the Documents and the Technology anywhere in the world belong to us or our licensors, that rights in IBDoc ® are licensed (not sold) to you, and that you have no rights in, or to, IBDoc®, the Documents or the Technology other than the right to use each of them in accordance with the terms of this EULA.
5.2 You acknowledge and agree that you have no right to have access to IBDoc®, especially the IBDoc ® Software, in source-code form.
6. Limited warranty
6.1 We warrant that:
6.1.1 IBDoc® will, when properly used according to the Instruction for Use (available on www.ibdoc.net), perform substantially in accordance with the functions described in the Documents; and
6.1.2 that the Documents correctly describe the operation of IBDoc ® in all material respects,
for a period of 360 days from the date on which IBDoc ® has been installed on your Device (Warranty Period).
6.2 If you notify us in writing within the Warranty Period of any defect or fault in IBDoc® as a result of which it fails to perform substantially in accordance with the Documents, you will be entitled to re-install IBDoc® or a successor version thereof, when available, and to get support according to clause 9.
6.3 The warranty does not apply:
6.3.1 if the Instruction for Use are not followed and the use of the Products result in a defect or fault;
6.3.2 if your Device does not perform according to the technical description;
6.3.3 if the defect or fault in the Products results from you having amended the Products or parts thereof;
6.3.4 if the defect or fault in the Products result from you having used the Products in contravention of the terms of this EULA; or
6.3.5 if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
7. Limitation of liability
7.1 Our liability and the liability of our officers, employees, contractors, agents and other persons for which we might be liable is limited to gross negligence and wilful misconduct.
7.2 You acknowledge that the Products has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of IBDoc® as described in the Documents meet your requirements.
7.3 If you use IBDoc® and Documents for any commercial or business purposes, you acknowledge and agree that we have no liability to you for any loss of profit, loss of business or reputation, business interruption, or loss of business opportunity.
7.4 We are only responsible for loss or damage you suffer that is a foreseeable result of our breach of this EULA or our gross negligence up to the limit specified in condition 7.5, but we are not responsible for any unforeseeable loss or damage. Loss or damage is foreseeable if it is an obvious consequence of our breach or if they were contemplated by you and us at the time we granted you the EULA.
7.5 Our maximum aggregate liability under or in connection with this EULA (including your use of any Services) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the commercial value of one IBDoc® test result. This does not apply to the types of loss set out in condition 7.6.
7.6 Nothing in this EULA shall limit or exclude our liability for:
7.6.1 death or personal injury resulting from our gross negligence;
7.6.2 fraud or fraudulent misrepresentation; and
7.6.3 any other liability that cannot be excluded or limited under Swiss law.
8.1 We may terminate this EULA immediately:
8.1.1 if all your patients enrolled terminate the use of the App for whatever reason;
8.1.2 if you commit a material or persistent breach of this EULA (including but not limited to the compliance with your data handling or payment obligations) which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; and
8.1.3 if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
8.2 We may terminate this EULA within 30 days after the service of written notice for any reason.
8.3 On termination of this EULA either according to clause 8.1 (immediate termination) or to clause 8.2 (termination for any reason):
8.3.1 all rights granted to you under this EULA shall cease;
8.3.2 you must immediately cease all activities authorised by this EULA, including your use of any Services; and
8.3.3 you must immediately delete or remove IBDoc® and all Documents from all Devices, and immediately destroy all copies of IBDoc® and Documents then in your possession, custody or control and certify to us that you have done so, except the patients’ data to be transferred according to clause 8.4.
8.4 In case of termination of this EULA, your patients and we have the right to transfer all patients’ data including patient’s profiles to a third-party professional healthcare provider. Such data including patient profiles transfer will be supported by you in a comprehensive manner.
9. Communication between us
9.1 If you wish to contact us in writing, or if any condition in this EULA requires you to give us notice in writing, you can send this to us by e-mail or by prepaid post to BÜHLMANN Laboratories AG, Baselstrasse 55, CH-4124 Schoenenbuch, Switzerland or email@example.com. We will confirm receipt of this by contacting you in writing, normally by e-mail.
9.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your request.
10. Events outside our control
10.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (Event Outside Our Control).
10.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:
10.2.1 our obligations under this EULA will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
10.2.2 we will use our reasonable endeavours to find a solution by which our obligations under this EULA may be performed despite the Event Outside Our Control.
11. Other important terms
11.1 We may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights or obligations under this EULA.
11.2 You may only transfer your rights or obligations under this EULA to another person if we agree in writing.
11.3 If we fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
11.4 Each of the conditions of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
11.5 Please note that this EULA, its subject matter and its formation, are governed by substantive Swiss law excluding its conflict of law rules as well as any international treaty, in particular the United Nations Convention on the International Sale of Goods (CISG). You and we both agree that the courts of Schoenenbuch, Switzerland, will have exclusive jurisdiction.