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SmartCreator

Terms of use

A software solution provided by Smart Reporting GmbH
Erika-Mann-Straße 69
80636 Munich
Germany

 

 

 

Definitions

 

The following capitalized terms shall have the meaning set forth below. Other defined terms (whether capitalized or not) used in this Agreement shall have the meaning set forth elsewhere in this Agreement:

  • “Customer Contract" is a written document executed separately by Smart Reporting and Customer, containing additional Customer specific terms regarding the purchase of SmartCreator Services and SmartCreator Support.
  • “Documentation” means reports or any other data or material, to be delivered to Customer by Smart Reporting under this Agreement.
  • “SmartCreator” means a proprietary software solution used by professionals to create structured reporting templates, that can be previewed, shared and exported to be used as structured reporting template in the product “SmartReports”. By providing a template creation workflow in SmartCreator a user is able to create individual templates to satisfy their clinical needs when using SmartReports. Reporting templates include pre-defined text-elements (e.g. wording suggestions) and thus support creating structured, standardized and machine-readable medical content according to checklists and clinical guidelines.
  • “SmartCreator Services” means access to SmartCreator made available by Smart Reporting, as specified in more detail in this Agreement.
  • “SmartCreator Support” means the support as specified in Annex 2 hereto.
  • “Internal Use” means use of SmartCreator Services directly related to Customer’s internal duties, transactions or business which the User performs for Customer in the normal course of business, and which specifically does not include, without limitation, (a) use as a service bureau, time sharing, or other similar services for the benefit of any third party, (b) processing for another party other than Customer, or (c) allowing access to SmartCreator to a third party.
  • “Server” shall have the meaning set forth in Section 2.1 of this Agreement.
  • “User(s)” means each Customer employee designated by Customer to use the SmartCreator on
    Customer ‘s behalf.

Making available of SmartCreator Services

Subject to the availability set forth in Section 2.5, Smart Reporting shall, for the term specified in a Customer Contract, make available to Customer SmartCreator for Internal Use by Users, through an internet connection on a Server designated by Smart Reporting (“Server”). Smart Reporting may at any time reasonably amend, modify, update or upgrade SmartCreator Services.

Smart Reporting does not owe to Customer the installation or maintenance of an internet connection from Customer’s computer to the exchange node operated and designated by Smart Reporting or its contractors. Subject to reasonable prior notice to Customer, Smart Reporting or its contractors may change such exchange node at any time.


The term of SmartCreator Services shall begin on the day on which SmartCreator Services are made accessible to Customer and shall continue the period agrees in the Customer Contract.


SmartCreator Services are available 99.0 % per calendar month except for Scheduled Maintenance. “Scheduled Maintenance” means maintenance which may delay or interrupt Customer’s use of the SmartCreator Services, and the necessity of which is known to Smart Reporting in advance of its occurrence. Smart Reporting shall schedule Scheduled Maintenance to the extent reasonably possible during periods of non-peak usage among its customer base.

 

Restrictions; Customer Obligations

 

Customer shall not, and shall not permit anyone to: (i) provide access to SmartCreator Services to any person other than Users, (ii) use SmartCreator Services on a service bureau basis or for providing other similar services for the benefit of any third party, (iii) access SmartCreator or use the documentation related to it in order to build a similar product or competitive product or (iv) use SmartCreator Services, with or as part of, any clinical trials, any other clinical use, any investigational use, any for profit translational research, it being agreed that any such use, product or service may only be undertaken or offered subject to the terms of a mutually agreed to separate addendum or other written agreement between the Parties.


Customer shall use suitable measures to secure the SmartCreator Services, including any respective login data, against access by unauthorized third parties. If Customer obtains attention of an unauthorized access to SmartCreator, Customer shall promptly notify Smart Reporting and provide Smart Reporting with assistance, as reasonably requested, to stop or remedy such access. In the event Customer cannot satisfactorily resolve any issue of unauthorized access to SmartCreator, Smart Reporting may, in conjunction with any other remedies it may have under this Agreement or under statutory laws, suspend Customer’s access to SmartCreator until the issue is resolved.


Customer shall use the Smart Reporting Service only in accordance with this Agreement and the applicable statutory provisions. Customer shall in particular comply with criminal, data protection, competition and copyright laws. Customer shall not import damaged or illegal data or misuse SmartCreator Services in any way. If Customer becomes aware of any violation of this Section 3.3, Customer shall immediately notify Smart Reporting and provide Smart Reporting with assistance, as reasonably requested, to stop or remedy the violation. In the event that Customer’s use of SmartCreator Services adversely impacts SmartCreator Services or the systems or content of any other customer of Smart Reporting or third party provider, or may subject Smart Reporting or any third party to liability, Smart Reporting may, in conjunction with any other remedies it may have under this Agreement or under statutory laws, suspend Customer’s access to the SmartCreator until the issue is resolved.

Support

During the term of SmartCreator Services Smart Reporting shall provide to Customer SmartCreator Support.

 

Customer Data

Subject to the limited licenses granted herein, Customer Data and all intellectual property rights associated therewith will remain the exclusive property of Customer and its licensors.

Customer hereby grants to Smart Reporting a non-exclusive, non-transferable license to process Customer Data on the Server to the extent that such processing is necessary to fulfil Smart Reportings obligations, including the provision of SmartCreator Services and SmartCreator Support, under this Agreement. Moreover, Smart Reporting may use Customer Data for the methodological refinement of SmartCreator and quality management. Smart Reporting may anonymize Customer Data for analytical and research purposes.

Customer, by accessing SmartCreator, acknowledges that Customer is are aware of and agrees with Smart Reporting's Data Processing Agreement, which is available at this address: https://www.smart-reporting.com/data-processing-agreement

Subscription and Service Fees

In consideration of the making available of SmartCreator and SmartCreator Support Customer shall pay to Smart Reporting the fees set forth in the Customer Agreemment (“Subscription Fees”). The payment of Subscription Fees shall be due in advance on the first day of the Initial Term and each subsequent renewal period (if any).


Smart Reporting has the right to adjust the amount of Subscription Fees annually. In the event of an adjustment, Smart Reporting shall take into account any cost changes that have occurred in the meantime with respect to wages, salaries, IT services costs, and general costs. Smart Reporting shall provide Customer with thirty (30) days written notice (with email constituting written form) in advance of the effective date of any change in Subscription Fees. In the event that Smart Reporting increases Subscription Fees by more than five per cent (5%) Customer may within fourteen (14) days as of receipt of Smart Reporting's notice terminate the Agreement at the end of the then current term; in case of such termination the Subscription Fees remain unchanged.


In consideration of the activation of Customer’s account, of user training and any other service offered by Smart Reporting to Customer (other than SmartCreator Services and SmartCreator Support), Customer shall pay to Smart Reporting the fees set forth in the Customer Agreement or, if no fees are otherwise specified, on a time and material basis at the then applicable Smart Reporting rates (“Service Fees”). The Service Fees will be due and payable subject to the Customer Schedule, or, if no date is otherwise specified, within thirty (30) days as of the receipt of invoice.


All monetary amounts shall be paid in EUR. All prices are net prices plus statutory value added tax applicable at the time.


Customer may only set-off claims and only exercise rights of retention due to claims, which are undisputed or recognized by a non-appealable judgment.

 

Intellectual Property Rights

All right, title and interest in SmartCreator and any other products and services (together with all patents, trademarks, service marks, trade dress, trade names, logos, copyrights, copyrightable works, goodwill, rights in data and databases, trade secrets, know-how and other intellectual

property rights therein (collectively, “Intellectual Property Rights”), whether or not patentable, or subject to copyright or trademark or trade secret protection, developed, produced, made available, or delivered by Smart Reporting in connection with or pursuant to Smart Reporting’s performance under this Agreement are the sole and exclusive property of Smart Reporting and its licensors. No title to, ownership of, or rights in services or products are transferred or granted to Customer under this Agreement except for those limited rights expressly granted in this Agreement.


If Customer becomes aware of breaches of Smart Reporting's or Smart Reporting’s licensors Intellectual Property Rights, Customer will inform Smart Reporting thereof without undue delay.

Limitation of Liability

With the exception of liability according to Product Liability Law and due to death, physical injury or harm to health, Smart Reporting’s liability is limited or excluded as follows.


In the event of negligence, Smart Reporting’s liability is limited to reimbursement of typically foreseeable damages. However, in case of slight negligence (“einfache Fahrlässigkeit”) Smart Reporting shall only be held liable, if Smart Reporting has breached a duty, the fulfilment of which is necessary to adequately perform this Agreement, and on the fulfilment of which Customer may rely.


Strict liability, regardless of fault, for defects that already existed upon conclusion of the Agreement is excluded, unless such defect constitutes a breach of a guarantee, or Smart Reporting has maliciously concealed the defect.


The foregoing limitation of liability shall also apply to the personal liability of Smart Reporting’s employees, staff, representatives and vicarious agents.

Data Protection & Data Security

Smart Reporting has established a privacy and information security program which is compliant with the privacy and security rules promulgated by the European Commission (GDPR) and with the US Department of Health and Human Services in 45 CFR parts 160 and 164, for any protected health information (as defined by title 45 of the Code of Federal Regulations). This program includes appropriate technical, physical and organizational measures to protect data against unauthorized or accidental destruction, alteration or disclosure; accidental loss; unauthorized access; misuse; unlawful processing; or damage. These measures include equipment, application and information security, access security and training of staff who are required to process data about this statement and the appropriate processing of phi (as defined by title 45 of the Code of Federal Regulations). Smart reporting imposes these obligations on any subcontractor or agent it engages.


14.2 Where required by applicable law, smart reporting (and any such agent used by Smart Reporting for the development, use or maintenance of the site), will promptly notify you of
any actual or potential compromise to the security, confidentiality, or integrity of any personal data under which Smart Reporting has control.

 

Confidentiality

“Confidential Information” means any information disclosed by a Party to the other Party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible schedule, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving Party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Customer Data is deemed Confidential Information of Customer. SmartCreator and Documentation are deemed Confidential Information of Smart Reporting.


During the term of this Agreement and for 5 years thereafter (perpetually in the case of software), each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each Party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information. Neither Party shall reverse engineer, disassemble, or decompile any prototypes, software or other tangible objects which embody the other Party's Confidential Information, and which are provided to the Party hereunder. Each Party may disclose Confidential Information of the other Party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving Party.


Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving Party, (b) is known to the receiving Party, without restriction, at the time of disclosure or becomes known to the receiving Party, without restriction, from a source other than the disclosing Party not bound by confidentiality obligations to the disclosing Party, or (c) is independently developed by the receiving Party without use of the Confidential Information as demonstrated by the written records of the receiving Party. The receiving Party may disclose Confidential Information of the other Party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving Party shall use reasonable efforts to promptly notify the other Party prior to such disclosure to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. Each Party may disclose the existence of this Agreement and the relationship of the Parties but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each Party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers, and investors.

 

Data Protection

To the extent that Customer Data and other data which Customer may disclose to Smart Reporting while using SmartCreator Services and obtaining SmartCreator Support contain personal data within the meaning of Article 4 (1) General Data Protection Regulation (GDPR; “Personal Data”), Smart Reporting shall process such Personal Data as a contract data processor on behalf of and according to the instructions given by Customer for the provision of SmartCreator Services and SmartCreator Support. Customer shall ensure that the collection, processing and use of Personal Data complies with all relevant statutory provisions, in particular the GDPR.

 

Independent Contractors

The relationship of Smart Reporting and Customer established by this Agreement is that of independent contractors, and nothing in this Agreement shall be construed to:

  • create an agency, partnership, franchise, joint venture, sales representative, employment
    or any other type of legal association between Smart Reporting and Customer;
  • give either Party the power to direct and control the day-to-day activities of the other;
  • constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or
  • allow either Party to create or assume any obligation on behalf of the other for any purpose whatsoever.

Miscellaneous Provisions

Neither Party may assign the Customer Contract or any right under the Customer Contract, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided however, that either Party may assign the Customer Contract to an acquirer of all or substantially all of the business of such Party to which the Customer Contract relates, whether by merger, asset sale or otherwise. The Customer Contract and the Terms of Use t shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns. Either Party may employ subcontractors in performing its duties under the Customer Contract and the Terms of Use provided, however, that such Party shall not be relieved of any obligation.


Notices delivered under the Customer Contract and the Terms of Use through electronic communications shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return email or other written acknowledgement). All notices shall be sent to the other Party at the address set forth on the Customer Contract.


In the event of a conflict between the provisions of the Terms of Use and the provisions of the Customer Contract, the terms and conditions of the Customer Vontract shall control.


Except as explicitly provided otherwise herein, no amendment or modification to the Customer Contract and the Terms of Use will be valid or binding upon the Parties unless made in writing and signed by the Parties.


The Customer Contract and these Terms of Use are subject to German law with the exception of its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.


If any provision of the Customer Contract and these Terms of Use are or will be found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions will remain in full force. Notwithstanding the above, the Parties shall replace such invalid or unenforceable provision by a valid provision, which reflects, to the maximum extent possible, the original intent of the Parties.


The Customer Contract and any amendment or modification thereof may be executed electronically by either DocuSign, Adobe Sign, or other third-party applications, which collect and store signatures, and affix signatures to documents electronically.